STATE OF
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BEFORE THE
INDIANA DEPARTMENT
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OF
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COMMISSIONER OF THE DEPARTMENT |
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Complainant, |
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v. |
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Case
No. 2003-13101-W |
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Ports petroleum company, inc., |
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Respondent. |
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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. 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.
The 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.
The Complainant is the Commissioner (“Complainant”) of the
Indiana Department of Environmental Management, a department of the State of
2.
The Respondent is Ports Petroleum Company, Inc.
(“Respondent”), which owns and/or operates Austin Fuel Mart, a truck /auto
refueling station (the “Site”). The Site
is located at
3.
The Indiana Department of Environmental Management (“IDEM”)
has jurisdiction over the parties and subject matter of this action.
4.
Pursuant to IC 13-30-3-3, on December 1, 2003, IDEM issued a
Notice of Violation via Certified Mail to:
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CT Corporation System,
Registered Agent |
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Ports Petroleum Company,
Inc. |
Ports Petroleum Company,
Inc. |
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5.
Pursuant to 327 Indiana Administrative Code (“IAC”) 5-2-2,
any discharge of pollutants into water 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 National Pollutant Discharge Elimination System
(“NPDES”) permit obtained prior to discharge.
6.
On October 16, 2002, representatives of IDEM conducted an
investigation of a spill of a of petroleum product from an oil and water separation
unit located in a parking lot on the Site, through a storm drain, to a nearby
earthen ditch, named Stink Ditch. On
April 10, 2003, IDEM's representative noted during an inspection that the
Respondent continued to discharge the petroleum product through a discharge
pipe to Stink Ditch. The Respondent
failed to obtain a valid NPDES permit prior to discharging the petroleum
product into Stink Ditch that flows through a storm drain on
7.
On May 23, 2003, the Respondent submitted a NPDES permit
application for the point source discharge of petroleum product from the oil
and water separation unit located in a parking lot on the Site, to Stink
Ditch. Based on information the
Respondent provided to IDEM in its NPDES permit application, which did not
include the discharge on October 16, 2002 or April 10, 2003, IDEM notified the
Respondent that a NPDES permit was not required for the on July 29, 2003.
8.
After IDEM was made aware of the discharge noted by IDEM’s
representatives during inspections on October 16, 2002 and April 10, 2003, IDEM
notified the Respondent of its requirement to obtain a valid NPDES permit to discharge
to waters of the state. On December 14,
2004, the Respondent submitted to IDEM, an application for a NPDES permit for
the point source discharge(s) from the Site to Stink Ditch.
9.
On October 20, 2005, IDEM issued the NPDES permit, No.
IN0062235, to the Respondent. The
effective date on the NPDES permit is December 1, 2005. The NPDES permit will expire on November 30,
2010.
10.
Pursuant to 327 IAC 2-6.1-7, any person who operates,
controls or maintains any mode of transportation or facility from which a spill
occurs shall, upon discovery of a reportable spill to the soil or surface
waters of the state, contain the spill, if possible, to prevent additional
spilled material from entering the waters of the state; undertake or cause
others to undertake activities needed to accomplish a spill response; and as
soon as possible, but within two hours of discovery, communicate a spill report
to the Department of Environmental Management, Office of Environmental
Response.
11.
A reportable spill of the petroleum product from the Site
occurred on or about October 16, 2002, and was not properly
contained, and/or responded to, and/or reported by the Respondent, in
violation of 327 IAC 2-6.1-7.
12.
Pursuant to IC 13-30-2-1(1), no person may 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 in any form which causes or would cause pollution which
violates or which would violate rules, standards, or discharge or emission
requirements adopted by the appropriate board under the environmental
management laws.
13.
The Respondent caused and/or
allowed the discharge of the petroleum product,
which is a contaminant or waste, into the environment from the Site on or about October 16, 2002, in violation of 327 IAC 2-6.1-7, and
thus violating IC 13-30-2-1(1).
14.
Pursuant to 327 IAC 2-1-6(a)(1), 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;
e.
which are in concentrations or combinations that will cause
or contribute to the growth of aquatic plants or algae to such a degree as to
create a nuisance, be unsightly, or otherwise impair the designated uses.
15.
Pursuant to IC 13-30-2-1(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.
16.
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.
17.
On October 16, 2002, during IDEM's spill investigation at
the Site, it was noted that a petroleum product had migrated offsite. On October 21, 2002, IDEM's representatives
conducted a follow-up inspection to IDEM's October 16, 2002 spill investigation. During the spill investigation and the follow
up inspection, it was observed that the Respondent was discharging a petroleum product to Stink Ditch, which caused or
contributed to the contamination of the waters of the state, in violation of
327 IAC 2-1-6(a)(1), and thus violating IC 13-30-2-1(1) and IC 13-18-4-5.
18.
The Respondent and Complainant wish and desire to settle and
compromise this action and any other violation or action. The violations settled by this Agreed Order
are those identified in IDEM’s October 16, 2002, October 21, 2002, and April
10, 2003 inspections of the Site, and referenced in an inspection
summary/violation letter issued to the Respondent by IDEM on June 13, 2003.
19.
In recognition of the settlement reached, the 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 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.
Immediately, upon the Effective Date, the Respondent shall
maintain compliance with point source discharge requirements of 327 IAC 5-2-2,
spill reporting requirements of 327 IAC 2-6.1-7, minimum water quality
standards of 327 IAC 2-1-6(a)(1), IC 13-30-2-1(1) and IC 13-18-4-5 the
monitoring and reporting requirements of its NPDES Permit No. IN0062235.
3.
Immediately upon the Effective Date, the
Respondent
shall cease all discharges from the Site that do not conform with its NPDES
permit, including the discharge of pollutants from the oil and water separator,
which may contain petroleum or petroleum products in an amount sufficient to
create visible sheen on any water of the state, including flow from the Site to
Stink Ditch.
4.
Within 30 days of the Effective Date, the Respondent shall
develop and submit to IDEM a stormwater pollution prevention plan (“SWP3”), in
accordance with Part I.D. of the NPDES permit.
The SWP3 shall be submitted to:
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Joe Gwinn, Environmental
Manager |
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Industrial NPDES Permits
Section |
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Office of Water Quality –
Mail Code 65-42 |
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Indiana Department of
Environmental Management |
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5.
Within 30 days of the Effective Date, the Respondent shall
develop and submit to IDEM, at the address in Order Paragraph 20 below, a Spill
Response Plan (“SRP”) for the Site.
Attachment “A” of this Agreed Order outlines the elements that need to
be included in a SRP.
6.
The Respondent shall take all actions necessary
to prevent discharges that contain petroleum or petroleum products in an amount sufficient to
create visible sheen on any waters of the state, including Stink Ditch. Such actions shall include, but not
necessarily be limited to:
a.
the removal and proper disposal of petroleum and petroleum
products from the oil and water separator, as often as necessary to prevent
discharges that violate the Permit;
b.
the operation and maintenance of the oil and water
separator, as necessary to prevent discharges that contain petroleum or
petroleum products in an amount sufficient to create visible sheen on any water
of the State; and
c.
the continuation and completion of the comprehensive
evaluation of the entire Site to determine the source(s) of all petroleum and
petroleum products that are entering the oil and water separator.
d.
training of the Respondent’s employees to comply with the
Clean Water Act and all applicable rules and statutes.
7.
The Respondent shall maintain records
documenting the actions taken pursuant to Order Paragraph 6 above. Records documenting actions taken pursuant to
Order Paragraph 6.a and 6.b shall be maintained at the Site, and shall be made
available for inspection and copying by representatives of IDEM upon request. In addition, the Respondent shall send, to
IDEM, copies of any records required to be maintained pursuant to this Order
Paragraph within 10 days of receiving a request from IDEM and/or its designated
representative(s).
8.
Except as provided below, the Respondent shall conduct visual
monitoring, at a minimum frequency of one time per day at the point(s) of any
discharge(s) from the Site, specifically including, but not limited to, the
points of discharge from the oil and water separator that discharges into Stink
Ditch.
9.
In the event that the Respondent observes visible sheen at
any location specified in Order Paragraph 8 above, the Respondent shall
increase the visual monitoring frequency at all of the locations specified
above to a minimum of three times per day, at approximately equally spaced
intervals. Such increased monitoring
frequency shall continue until such time as the Respondent has identified and
eliminated the cause of the visible sheen.
10.
The Respondent shall
maintain records of the visual monitoring conducted pursuant to Order Paragraph
8 above, including, but not necessarily be limited to:
a.
the date and time of visual monitoring;
b.
the location of visual monitoring;
c.
the weather conditions at the time of the visual monitoring;
d.
the name of the individual conducting the visual monitoring;
and
e.
the results of the visual monitoring, specifically including
whether visible sheen was present at the time of the visual monitoring.
11.
The Respondent shall maintain
such records at the Site, and shall make such records available for inspection
and copying by representatives of IDEM, upon request. In addition, the Respondent shall send copies
of such records to IDEM within 10 days of receiving a request.
12.
In the event that the Respondent
observes visible sheen on any water of the state, including Stink Ditch, which
may be attributable to a discharge from the Site, the Respondent
shall comply with the spill reporting and response requirements contained in
327 IAC 2-6.1.
13.
The Respondent shall, by April 15, 2006, and every 60 days
thereafter until the Respondent completes the evaluation required pursuant to
Order Paragraph 6.c, submit a report to IDEM that contains a description of the
portions of the evaluation conducted by the Respondent, the results thereof,
and the planned activities for further evaluation if the entire evaluation is
not yet complete. The Respondent must
complete the evaluation required pursuant to Order Paragraph 6.c no later than
June 1, 2006, and the Respondent shall submit to IDEM a final report that
contains a description of the evaluation and the results thereof, no later than
June 1, 2006.
14.
The Respondent shall, within 30 days of the Effective Date,
ensure that the oil and water separator is under the direct supervision of a
Class A-SO wastewater certified operator, as required by 327 IAC 5-22-8(2).
15.
The Respondent shall, within nine months of the effective date
of the NPDES Permit issued to the Respondent for discharges from the Site
(“Performance Period”), demonstrate nine consecutive months of compliance
(“Compliance Demonstration”) with the terms and conditions of the NPDES Permit. In the event that Respondent fails to make
the Compliance Demonstration, the Respondent shall, within 60 days of becoming
aware that the Compliance Demonstration cannot be achieved, develop and submit
to IDEM a plan (“Action Plan”) that identifies the corrective actions that the
Respondent will take to achieve and maintain compliance with the terms and
conditions of the NPDES Permit. The
Action Plan shall include a schedule, including specific milestone dates for
initiating and completing the actions contained therein.
16.
The Action Plan shall be subject to the approval of
IDEM. In the event that IDEM determines
the Action Plan to be deficient or otherwise un-approvable, the Respondent
shall, upon written notice by IDEM, revise and resubmit the Action Plan, in
accordance with IDEM’s written notice.
If, after three submissions of the Action Plan by the Respondent, IDEM
finds the Action Plan to be deficient or otherwise un-approvable, IDEM may
require the Respondent to revise and resubmit the Action Plan, or
alternatively, may modify and approve the Action Plan, in which case the
Respondent shall implement the Action Plan as modified and approved by IDEM.
17.
The approved Action Plan shall immediately be incorporated
into this Agreed Order and shall be deemed an enforceable part thereof. The Respondent, upon receipt of written
approval from IDEM, shall immediately implement the approved Action Plan and
adhere to the schedule contained therein.
18.
The Respondent shall notify IDEM, in writing, within 10 days
of completion of each action contained in the approved Action Plan. The notification shall include a description
of the action completed and the date it was completed.
19.
All submittals required by this Agreed Order, unless
notified otherwise in writing, shall be sent to:
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Ms. Aletha Lenahan,
Enforcement Case Manager |
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Office of Enforcement –
Mail Code 60-02 |
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Indiana Department of
Environmental Management |
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Room N1315 |
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20.
The Respondent is assessed a civil penalty of Ten Thousand,
One Hundred Dollars ($10,100). Said
penalty amount shall be due and payable to the Environmental Management Special
Fund within 30 days of the Effective Date of this Agreed Order.
21.
In the event the terms and conditions of the following Order
Paragraphs are violated, the Complainant may assess and the Respondent shall
pay a stipulated penalty in the following amount:
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Paragraph |
Violation
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Penalty Amount |
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3 |
Failure
to cease all discharges from the Site that exceed NPDES permit limits,
including the discharge from the oil and water separator, which may contain
petroleum or petroleum products in an amount sufficient to create visible
sheen on any water of the state. |
$1,000
per day per violation. |
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4 |
Failure
to timely submit the SWP3, in accordance with the Permit. |
$250
per week late. |
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5 |
Failure
to timely submit a SRP for the Site. |
$500
per week late. |
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6 |
Any
discharge of pollutant from the Site that exceed NPDES permit limits,
including any discharge from the oil and water separator, which contains
petroleum or petroleum products in an amount sufficient to create visible
sheen on any water of the state. |
$500
per day per violation. |
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7 |
Failure
to maintain records as required or failure to provide records to IDEM as
required. |
$250
per day per violation. |
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8, 9, & 10 |
Failure
to conduct monitoring, as required. |
$500
per day per violation. |
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11 |
Failure
to maintain records as required and/or failure to provide records to IDEM as
required. |
$250
per day per violation. |
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12 |
Failure
to comply with the spill reporting and response requirements contained in 327
IAC 2-6.1. |
$500
per violation. |
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13 |
Failure
to submit an evaluation report to IDEM, as required. |
$250
per week late. |
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13 |
Failure to complete the entire evaluation of the
Site, as required. |
$500
per week late. |
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14 |
Failure
to have the on-site oil and water separator, for use as a wastewater
treatment plant, under the direct supervision of a Class A-SO wastewater
certified operator, as required. |
$500
per week late. |
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Failure to submit the Action Plan as required. |
$250
per week late. |
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16 |
Failure to revise and resubmit the Action Plan as
required. |
$250
per week late. |
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17 |
Failure to meet any milestone date set forth in the
approved Action Plan. |
$250
per week late. |
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18 |
Failure to notify IDEM, in writing, within 10 days
of completion of each action contained in the approved Action Plan. |
$250
per week late. |
22.
Stipulated penalties shall be due and payable within 30 days
after the 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 any of
the stipulated penalties given above, the Complainant may seek any other
remedies or sanctions available by virtue of the Respondent’s violation of this
Agreed Order or Indiana law, including, but not limited to, civil penalties
pursuant to IC 13-30-4.
23.
Civil and stipulated penalties are payable by check to the
Environmental Management Special Fund.
Payment shall include the Case Number, 2003-13101-W, of this action and
shall be mailed to:
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Cashiers
Office – Mail Code 50-10C |
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Indiana
Department of Environmental Management |
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24.
In the event that the civil penalty required by Order
Paragraph 20, is not paid within 30 days of the Effective Date of this Agreed
Order, the 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.
25.
This Agreed Order is not and shall not be interpreted to be
a permit, or a modification of an existing permit, nor shall it in any way
relieve the Respondent of its obligation to comply with the requirements of its
applicable NPDES permit or with any other applicable federal or state law or
regulation.
26.
The Complainant does not, by its approval of this Agreed
Order, warrant or aver in any manner that the Respondent's compliance with any
aspect of this Agreed Order will result in compliance with the provisions of
the Clean Water Act, NPDES permit, federal or state law.
27.
This Agreed Order shall apply to and be binding upon the
Respondent, its successors and assigns.
The Respondent's 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 Respondent shall in any way alter their
status or responsibilities under this Agreed Order.
28.
In the event that any terms of the 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.
29.
The Respondent shall provide a copy of this Agreed Order, if
in force, to any subsequent owners or successors before ownership rights are
transferred. The Respondent shall ensure
that all contractors, firms and other persons performing work under this Agreed
Order comply with the terms of this Agreed Order.
30.
This Agreed Order shall remain in effect until the
Respondent has complied with terms and conditions of Order Paragraphs 3 through
24 of this Agreed Order and IDEM has issued a close-out letter to the
Respondent.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
of Environmental Management |
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Ports
Petroleum Company, Inc. |
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By: |
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By: |
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Mark
W. Stanifer, Chief |
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Mohammed
Alasadi |
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Water
Enforcement Section |
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Office
of Enforcement |
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Printed: |
Michael D. Ports |
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Title |
President |
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Date: |
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COUNSEL
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Department
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Joseph
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Office
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Department
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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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Original document signed
by Matthew Klein on December 30, 2005 |
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Matthew
T. Klein |
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Assistant
Commissioner |
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Compliance
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ATTACHMENT A
A
Spill Response Plan will include, but not be limited to, the following:
(1)
The names and telephone numbers of persons who are
identified by the Respondent as responsible for implementing the Spill Response
Plan.
(2)
Identification of areas where potential spills can occur and
their accompanying drainage points.
(3)
Procedures to be followed in the event of a spill, including
the following:
(A)
Actions to contain or manage any type of spill.
(B)
Identification of the proper authorities to be contacted.
(C)
Mitigation of any adverse effects of the spill.
(4)
Identification of equipment and clean-up materials to be
used in the event of a spill.
(5)
Procedures for reporting the spill to:
(A)
Any applicable local emergency or health authorities; and
(B)
IDEM, in accordance with 327 IAC 2-6.1.