STATE OF INDIANA

COUNTY OF MARION

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BEFORE THE INDIANA DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT

 

COMMISSIONER OF THE DEPARTMENT
OF ENVIRONMENTAL MANAGEMENT,

Complainant,

v.

BP PRODUCTS NORTH AMERICA, INC.,

Respondent.

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Case No. 2006-16455-H




 

 

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 BP Products North America, Inc. (“Respondent”), which owns and/or operates a facility with United States Environmental Protection Agency (“EPA”) ID No. IND 000 810 861, located at 2815 Indianapolis Boulevard in Whiting, Lake County, Indiana (“Site”).

 

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 on January 22, 2007, via Certified Mail, to:

 

Ross J. Pillari, President

The Prentice-Hall Corporation System, Inc.

BP Products North America, Inc.

Registered Agent for BP Products North

4101 Winfield Road

America, Inc.

Warrenville, Illinois  60555

251 East Ohio Street, Suite 500

Indianapolis, Indiana  46204

 

5.                  Respondent last notified EPA of Large Quantity Generator and Treatment, Storage, and/or Disposal activities on February 7, 2005.

 

6.                  At this location, Respondent operates a waste water treatment plant for its refinery.

 

7.         329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270 and Part 273, including those identified below.

 

8.         During an investigation on November 20, 2006, conducted by a representative of IDEM, the following violations were found:

 

a.         Pursuant to 40 CFR 262.34(a)(4) referencing 40 CFR 265.31 and/or 40 CFR 264.31, facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste to the air, soil, or surface water, which could threaten human health or the environment.

 

As noted during the inspection, Respondent failed to properly maintain and operate the facility to minimize a release of hazardous waste to the environment.  A suction hose for the J-23 Sump failed on November 18, 2006, allowing hazardous waste water (F037, F038, K049, and K051) to be released into the environment.  The waste water overfilled the sump unit and spilled over into a swale drain ditch located just outside the Storm Water Surge Basin (“SWSB”) on the Site.  The release made its way back into the SWSB, an area for which a final post-closure permit was issued on March 30, 2007.

 

After the release, Respondent immediately took steps to contain and clean up the release.  Vac-trucks were employed to recover the free liquid within hours of the release, and the process generating the hazardous waste water was shut down until repairs were made.  However, due to the release impacting soil within the swale and paved areas at other areas of the facility which will require further remediation, including the area of the SWSB, Respondent submitted a Corrective Action Work Plan to address the remaining cleanup.  The Corrective Action Plan was approved by IDEM on April 5, 2007.

 

b.         Pursuant to IC 13-30-2-1(1), 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 in violation of 40 CFR 265.31 and/or 40 CFR 264.31.

As noted during the inspection, Respondent allowed hazardous waste water to overfill a sump unit, thereby resulting in a release to the environment in violation of 40 CFR 265.31 and/or 40 CFR 264.31.

 

c.        Pursuant to IC 13-30-2-1(3), no person shall deposit any contaminants upon the land in a place or manner that creates or would create a pollution hazard that violates or would violate 40 CFR 265.31 and/or 40 CFR 264.31.

As noted during the inspection, Respondent deposited hazardous waste water upon the land in a place or manner that created a pollution hazard that violated 40 CFR 265.31 and/or 40 CFR 264.31.

 

9.         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.         Upon the Effective Date of this Agreed Order, Respondent shall continue implementation of the Corrective Action Plan, as approved by IDEM on April 5, 2007, and in accordance with the time frames contained therein.

 

3.         Upon the Effective Date of this Agreed Order, Respondent shall, in order to address the area of the release, continue to follow the Post-closure permit issued on March 30, 2007, for the SWSB, as referenced as part of Current Condition Report in Attachment J.

 

4.         All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

 

Brenda Lepter, Enforcement Case Manager

Office of Enforcement – Mail Code 60-02

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

5.         Respondent is assessed a civil penalty of Eight Thousand Seven Hundred and Fifty Dollars   ($8,750).  Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date.  In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

 

6.         The civil penalty is 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

Cashier – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

 

7.         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.

 

8.         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.

 

9.         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 ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

 

10.       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 permit(s) or any applicable Federal or State law or regulation.

 

11.       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.

 

12.       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 NOV.

 

13.       Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the 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 EPA or any other agency or entity.

 

14.             This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.  Such letter shall be issued upon Respondent's completion of those activities set forth in Section II, Paragraph Nos. 2, 3, & 5 of this Agreed Order.

 

 

TECHNICAL RECOMMENDATION:

 

RESPONDENT:

Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

Nancy L. Johnston

 

Printed:

 

 

Office of Enforcement

 

Title:

 

 

 

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

 

 

 

COUNSEL FOR COMPLAINANT:

 

COUNSEL FOR RESPONDENT:

For the Department of Environmental Management

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

 

Deputy Attorney General

 

 

 

Date:

 

 

Date:

 

 

 

 

 

 

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL

MANAGEMENT THIS

 

DAY OF

 

, 2007.

 

 

For The Commissioner:

 

 

 

Signed on July 13, 2007

 

Robert B. Keene

 

Assistant Commissioner

 

Office of Legal Counsel and Enforcement