STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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OF
ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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DUKE ENERGY
INDIANA, LLC – EDWARDSPORT GENERATING 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 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.
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 (“NOV”) via Electronic Mail to:
Stan
Pinegar, President |
CT Corporation System, Registered
Agent |
Duke Energy Indiana, LLC |
334 North Senate Avenue |
1000 East Main Street |
Indianapolis, IN 46204 |
Plainfield, IN 46168 Stan.Pinegar@duke-energy.com |
wkuslawdept@wolterskluwer.com |
5.
During
an investigation conducted by a representative of IDEM, the following
violations were found:
a.
Pursuant
to 40 CFR 60.255(b)(1)(ii), if the results of the most recent performance test
demonstrate that emissions from the affected facility are 50 percent or less of
the applicable emissions standard, a new performance test must be conducted
within 24 calendar months of the date that the previous performance test was
required to be completed.
Between 2013 and 2017, Respondent failed to conduct performance testing of the
Truck and Rail Receiving Baghouse (S-1B) and Reclaim Tunnel Baghouse (S-2A)
within 24 calendar months of the previous performance test, in violation of 40
CFR 60.255(b)(1)(ii).
b.
Pursuant
to 40 CFR 60.255(b)(2)(ii), for each affected facility subject to an opacity
standard, an initial performance test must be performed. If all 6-minute
average opacity readings in the most recent performance test are equal to or
less than half the applicable opacity limit, a new performance test must be
conducted within 12 calendar months of the date that the previous performance
test was required to be completed.
Respondent failed to conduct an initial performance test and subsequent annual
performance tests of the Rod Mill (WRMV1&2) in 2012, 2013, 2015, 2016,
2017, & 2018, in violation of 40 CFR 60.255(b)(2)(ii).
c.
Pursuant
to 40 CFR 60.255(f)(1)(iii), as an alternative to meeting the requirements in
paragraph (b)(2) of this section, an owner or operator of an affected facility
that commenced construction, reconstruction, or modification after April 28,
2008, may elect to conduct a performance test using Method 9 of appendix A-4 of
this part at least once every 5 calendar years for each affected facility.
Respondent failed to conduct the initial and first subsequent Method 9
observation of the Coal Unloading between 2012 and 2018, in violation of 40 CFR
60.255(f)(1)(iii).
6.
Respondent
has conducted performance tests and/or observations of all the affected
facilities and demonstrated compliance with the above regulations.
7.
Respondent
submitted a Self-Disclosure on December 10, 2018, regarding failure to comply
with all aspects of New Source Performance Standards for Coal Preparation and
Processing Plants, 40 C.F.R. Part 60, Subpart Y (“NSPS Subpart Y”). The
self-disclosure letter stated that while Respondent was in compliance with its
Title V permit for the Site, Respondent had determined in the course of an
internal audit that its Title V permit did not include the correct regulatory
citations with respect to NSPS Subpart Y. Respondent determined and notified
IDEM that while the station was in compliance with PM emissions limits, there
were certain provisions of NSPS Subpart Y that the Site had not historically
followed.
8.
In
addition, on January 28, 2019, Respondent submitted an
application to amend its Title V permit to revise the NSPS Subpart Y
provisions. On April 11, 2019, IDEM issued an Administrative Amendment making
the requested revisions.
9.
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 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 rules listed
in the findings of fact above.
3.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondent otherwise in writing, shall be sent to:
Matthew
Chaifetz, Enforcement Case Manager
Office of Air Quality
Indiana
Department of Environmental Management
100 North
Senate Avenue
Indianapolis,
IN 46204-2251
mchaifet@idem.IN.gov
4.
Pursuant to IC 13-30-4-1, Respondent is
assessed and agrees to pay a civil penalty of Twelve Thousand One Hundred Eighty-Seven
Dollars ($12,187.00). Said penalty
amount shall be due and payable to the Environmental Management Special Fund
within thirty (30) days of the Effective Date; the thirtieth day being the “Due
Date.”
5.
Civil 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
Accounts
Receivable
IGCN, Room
1340
100 North
Senate Avenue
Indianapolis,
IN 46204
6.
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 5,
above.
7.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
8.
This Agreed Order shall apply to and be binding
upon Respondent and all successors and assigns. Respondent shall provide a copy
of this Agreed Order, if in force, to any subsequent owners, successors, or
assigns before ownership rights are transferred.
9.
No change in ownership, corporate, or partnership
status of Respondent shall in any way alter the Respondent’s status or
responsibilities under this Agreed Order.
10.
Respondent shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
11.
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.
12.
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 the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
13.
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.
14.
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 violations
specified in the NOV.
15.
Nothing in this Agreed Order shall prevent IDEM
or anyone acting on its behalf from communicating with the U.S. Environmental
Protection Agency (“U.S. 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 U.S. EPA or any
other agency or entity.
16.
This Agreed Order shall remain in effect until
Respondent has complied with all terms and conditions of this Agreed Order and
IDEM has issued a Resolution of Case letter to Respondent.
TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Duke Energy Indiana, LLC – Edwardsport
Generating Station |
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By: |
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By: |
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David
P. McIver, Chief |
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Printed: |
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Enforcement
Section |
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Title: |
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Office
of Air Quality |
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Date: |
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COUNSEL
FOR COMPLAINANT: |
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COUNSEL
FOR RESPONDENT: |
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For
the Department of Environmental Management |
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By: |
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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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2023. |
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For
the Commissioner: |
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Signed
on February 15, 2023 |
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Matthew
Stuckey |
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Assistant
Commissioner |
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Office
of Air Quality Indiana
Department of Environmental Management |
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