STATE
OF INDIANA |
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BEFORE
THE INDIANA DEPARTMENT |
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COMMISSIONER
OF THE DEPARTMENT Complainant, v. Indianapolis Power & Light Company, Petersburg
generating station, 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.
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 |
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By:__________________________ |
By:________________________ |
Samantha K.
Groce, Chief |
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Water
Enforcement Section |
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Surface Water, Operations & |
Printed:_____________________ |
Enforcement Branch |
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Office of Water Quality |
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 ___________ DAY OF ________________, 20___. |
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For
The Commissioner: |
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Signed on September 10, 2020 |
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Martha
Clark Mettler |
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Assistant
Commissioner |
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Office
of Water Quality |