STATE OF INDIANA ) BEFORE THE INDIANA DEPARTMENT OF
COMMISSIONER OF THE DEPARTMENT )
) SS: ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION )
OF ENVIRONMENTAL MANAGEMENT, )
)
Complainant, )
)
v. ) CAUSE NO. B-2409
)
CINERGY CORPORATION, D/B/A )
CINERGY/PSI ENERGY )
)
Respondent. )
The Complainant and the 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.
1. Complainant is the Commissioner (hereinafter referred to as "Complainant") of
the Indiana Department of Environmental Management, a department of the State
of Indiana created by IC 13-13-1-1.
2. Respondent is Cinergy Corporation D/B/A Cinergy/PSI Energy (hereinafter
referred to as "Respondent"), having business offices located at 1000 East Main
Street, Plainfield, IN 46168-1782. Respondent owns and operates the Wabash
River Generating Station and the associated operations, located at 445 Bolton
Road, West Terre Haute, IN 47885.
3. The IDEM has jurisdiction over the parties and subject matter of this action.
4. Respondent waives its right to the issuance of a Notice of Violation and to the
settlement period of sixty (60) days as provided for by IC 13-30-3-3.
5. IC 13-30-2-1 states, in part, that no person shall 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 or into any publicly owned treatment works.
327 IAC 5-2-8 requires, in substance, that the following conditions apply to all
National Pollutant Discharge Elimination System (NPDES) permits:
the permittee must comply with all terms and conditions of the NPDES
permit. Any permit non-compliance constitutes a violation of Clean Water
Act (CWA) and the Environmental Management Act (EMA) and is
grounds for enforcement action;
b. the permittee shall take all reasonable steps to minimize or correct any
adverse impact on the environment resulting from noncompliance with the
permit;
c. the permittee shall at all times maintain in good working order and
efficiently operate all facilities and systems (and related appurtenances) for
collection and treatment which are installed or used by the permittee and
which are necessary for achieving compliance with the terms and
conditions of the permit;
d. the permittee shall comply with monitoring, recording, and reporting
requirements established in accordance with 327 IAC 5-2-13, 327 IAC 5-
2-14, and 327 IAC 5-2-15.
The Wabash River Generating Station Re-powering site is a joint venture of
Respondent and the United States Department of Energy for an innovative coal
gasification demonstration project that has been complicated by the use of high
sulfur Indiana coal. Coal gas product is used to power a combustion turbine, after
which the hot exhaust gases are passed through a heat recovery steam generator to
produce steam used to power another turbine located inside the Wabash River
Station. In April, 1997, Respondent began monitoring Outfall 102, an internal
waste stream that discharges from the coal gasification and re-powering project
wastewater pond to the ash settling pond system, which then discharges to the
Wabash River through Outfall 002.
Elevated levels of selenium, cyanide, and arsenic were experienced at the site due
to factors that arose after the NPDES permit was issued and that Respondent
believe could not reasonably have been known by the Respondent, because no
operational or discharge data were available at the time the permit was drafted .
Consistent, monthly NPDES permit effluent limitation violations for total
recoverable selenium, total cyanide, and total recoverable arsenic have occurred at
Outfall 102 of the Respondent's Wabash River Station Re-powering site from
May, 1997 through February, 1999, placing the Respondent in Significant
Noncompliance (SNC) with NPDES permit No. IN 0002810. Elevated levels of
cadmium, copper, and mercury also occurred, but only on rare, isolated occasions.
This incident constitutes violation of IC 13-30-2-1 and 327 IAC 5-2-8 and
conditions of the NPDES permit No. IN 0002810, because of the failure to meet
permit effluent limitations.
9. Respondent contacted IDEM about the noncompliance problem at Outfall 102 in a
May 28, 1997 letter, which included a copy of an information sheet that had been
submitted with the April, 1997 NPDES Discharge Monitoring Report (DMR).
Respondent requested meetings that were held at IDEM on July 18, 1997 and at
the site on March 5, 1998. Respondent's sampling of the various wastestreams
revealed that effluent from operations of it's associate, Dynegy Power
Corporation, D/B/A Dynegy Gasification Services, Inc., was the source of the
elevated constituents referenced above. Respondent submitted a letter dated
August 18, 1997 to support the issuance of a compliance schedule having a one
year period for monitoring, data collection, and study, to be followed by a six
month period for installation and debugging of treatment process technology.
Respondent submitted a written compliance schedule to IDEM dated April 16,
1998, which proposed a Fall, 1999 milestone date for completed construction of a
wetland treatment facility at the site. Respondent indicated that no conventional
treatment method was found to be commercially available for the specific
selenium compound (selenocyanate) produced by the coal gasification process.
Respondent reported that a wetland research project by the University of
California, Berkeley and the Electric Power Research Institute (EPRI) was found
that showed some promise of success in treating selenocyanate by the uptake and
volatilization of selenium by specific wetland plant species.
10. Since April, 1998, the Respondent has been conducting pilot study research in the
EPRI wetland treatment method. IDEM sent Respondent a June 4, 1998 letter to
acknowledge receipt of the Respondent's compliance schedule, and to request that
periodic written progress reports be submitted to document a return to compliance
status. Respondent submitted written quarterly progress reports dated September
21, 1998, December 21, 1998, and March 22, 1999.
Respondent requested a meeting which was held on March 23, 1999, at which
Respondent presented a status report regarding the EPRI wetland research project
for their specific site. While success of the project was still presented to be
promising, Respondent indicated that the Fall, 1999 deadline of the original
compliance schedule could not be met. Respondent also indicated that the
required acreage for the wetland may exceed the amount of land area that is
actually available at their site. IDEM noted that these problems emphasize the
need for an Agreed Order, with stipulated penalties in place for failure to meet
milestones in an enforceable compliance schedule. IDEM further noted that a
Compliance Plan is needed to formulate both an interim plan to minimize
effluent violations and an alternative "Plan B" for immediate use if the wetland
treatment technique is found not to be applicable for this site.
12. In recognition of the settlement reached, Respondent waives any right to
administrative and judicial review of this Agreed Order.
1. This Agreed Order shall be effective ("Effective Date") when it is approved by the
Complainant or his delegate, and has been received by the Respondent. This
Agreed Order shall have no force or effect until the Effective Date.
2. Within sixty (60) days of adoption of this Agreed Order, the Respondent shall
submit to IDEM for its approval a Compliance Plan (CP) which addresses the
deficiencies and violations noted herein. This plan shall include but not be
limited to measures that will result in full compliance with the NPDES permit by
delineating active task steps (with scheduled milestone dates):
to establish an enforceable compliance schedule for construction of the
proposed wetland treatment facility, as researched by EPRI;
to formulate and engage an interim plan of operation to minimize effluent
violations until the new treatment facility in place; and
to formulate an alternative "Plan B" for immediate engagement if the
wetland treatment technique is found not to be applicable for this site.
The CP is subject to the approval of IDEM. If the plan is deemed inadequate by
IDEM, a revised CP shall be submitted within fifteen (15) days of receipt of
notice from IDEM of the inadequacies thereof. If after the submission of the
revised document(s) IDEM still finds the document(s) are inadequate, then IDEM
may require further modification of the CP as necessary to meet IDEM's
requirements. If further modification does not meet IDEM's approval, IDEM will
suggest appropriate modification to be undertaken by Respondent. If such
modification is not undertaken or an alternative plan submitted by Respondent is
not approved by IDEM, the Respondent will be subject to stipulated penalties.
Respondent, upon written notification by IDEM, shall immediately implement the
approved plan, including the dates for completion of the schedule. The approved
plan shall be incorporated into the Agreed Order and shall be deemed an
enforceable part thereof.
4. All submittals required by this Agreed Order, unless notified otherwise in writing,
shall be sent to:
Dave Knox, Case Manager
Water Enforcement Section
Office of Enforcement
IGCN, Rm N1315
Indiana Department of Environmental Management
100 North Senate Avenue
P.O. Box 6015
Indianapolis, Indiana 46206-6015
6. Respondent is not assessed an up-front civil penalty.
7. In the event the following terms and conditions are violated, the Complainant may
assess and the Respondent shall pay a stipulated penalty in the following amounts:
Violation Penalty
Paragraph 2 $200 per day any portion of CP is submitted
late;
Paragraph 3 $200 per day revised CP, if necessary, is
submitted late, or milestone dates in the CP,
once approved, are not achieved.
8. Stipulated penalties shall be due and payable within thirty (30) days after
Respondent receives written notice that the Complainant has determined a
stipulated penalty is due. Assessment and payment of stipulated penalties shall
not preclude the Complainant from seeking any additional relief against the
Respondent for violation of the Agreed Order. In lieu of assessment of the
stipulated penalty given above, the 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
.
9. If assessed, stipulated penalties are payable by check to the Environmental
Management Special Fund. Checks shall include the Cause Number (B-2409) of
this action and shall be mailed to:
Cashier
IDEM
100 N. Senate Avenue
P.O. Box 7060
Indianapolis, Indiana 46207-7060.
10. This Agreed Order shall apply to and be binding upon the Respondent, its officers,
directors, principals, agents, successors, subsidiaries, and assigns. The signatories
to this Agreed Order certify that they are fully authorized to execute this document
and legally bind the parties they represent. No change in ownership, corporate, or
partnership status of the Respondents shall in any way alter its status or
responsibilities under 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 the Agreed Order did not contain the invalid terms.
12. The 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 by contract require that all contractors, firms, and other persons
acting for it comply with the terms of this Agreed Order.
13. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.
By: By:
Mark W. Stanifer, Chief Debra J. Nispel
Water Enforcement Section Manager, Water Quality and Waste Management
Office of Enforcement Cinergy/PSI Environmental Services
Date: Date:
COUNSEL FOR COMPLAINANT: COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: By:
Office of Legal Counsel Barbara F. Gambill
Department of Environmental Cinergy Legal Department
Management Printed:
Date: Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT
THIS DAY OF , 1999.
For the Commissioner:
Signed 5/11/99
Felicia Robinson George
Assistant Commissioner of Enforcement
Converted by Andrew Scriven