STATE OF INDIANA |
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BEFORE THE INDIANA
DEPARTMENT OF |
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COUNTY OF MARION |
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ENVIRONMENTAL
MANAGEMENT |
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COMMISSIONER OF THE
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OF ENVIRONMENTAL
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Complainant, |
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Case No. 2018-25311-S |
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DUKE ENERGY INDIANA,
LLC, |
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LEGACY EDWARDSPORT STATION, |
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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 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 |
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As to Respondent: |
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Julie L. Ezell, Esq. |
Duke Energy Legal
Department |
1000 East Main Street |
Plainfield, IN 46168 |
(317) 838-1100 |
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: |
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Department of
Environmental Management |
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By:
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By: _________________________ |
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Nancy
Johnston, Section Chief |
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Enforcement
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Printed:
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Office of
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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 |
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DAY OF |
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For the Commissioner: |
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Peggy Dorsey, Assistant Commissioner |
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Office of Land
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