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ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 2009-18442-H |
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BP PRODUCTS NORTH AMERICA
INC., |
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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 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
2.
Respondent
is BP Products North America Inc. (“Respondent”), which owns and/or operates
the facility with United States Environmental Protection Agency (“EPA”) ID No. IND072075294,
located at
3.
IDEM
has jurisdiction over the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on June 3, 2009, IDEM issued a Notice of Violation (“NOV”) via
Certified Mail to:
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Mr.
John Shishlom, Terminal Manager |
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BP
Products North America Inc. |
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5.
Respondent
notified EPA of Generator activities on February 29, 2008.
6.
Respondent
owns and operates a fuel company that stores ethanol, premium diesel, ultra low
sulfur and regular fuel on-site in product storage tanks.
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, including an inspection conducted on March 3, 2009 by a
representative of IDEM, the following violations were found:
a. Pursuant
to 40 CFR 262.34(b), a generator who accumulates hazardous waste for more than
90 days is an operator of a storage facility and is subject to the requirements
of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270. Respondent stored hazardous waste on-site for
greater than 90 days without complying with 40 CFR Part 264 and 40 CFR Part
270. Specifically, seven 55-gallon
containers of D001 – Waste Flammable Liquid and three 55-gallon containers of
D001 – Waste Flammable Solids were stored greater than 90 days.
Respondent
arranged removal and proper disposal of the ten (10) 55-gallon containers on
March 30, 2009.
b. Pursuant
to IC 13-30-2-1(10) and 40 CFR 270.1(c), a person may not commence or engage in
the operation of a hazardous waste facility without having first obtained a
permit from the department. Respondent
operated a hazardous waste facility without having first obtained a permit from
the department.
c. Pursuant
to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or
operator of a hazardous waste facility, must notify the Commissioner of its
hazardous waste activity on the approved forms.
Respondent failed to notify the Commissioner of hazardous waste storage
activities.
d. Pursuant to 40 CFR 262.34(a)(2), a
generator may accumulate hazardous waste on-site for 90 days or less without a
permit, provided that the date when the accumulation begins is clearly marked
and visible for inspection on each container.
Respondent accumulated hazardous waste on-site, without a permit, and
did not mark hazardous waste containers with accumulation start dates. Specifically, one 55-gallon container of D001
and D018 Red Dye and one 55-gallon container of D001 – Waste Flammable Solids
were not clearly marked with the accumulation start date.
Respondent
properly marked the containers with an accumulation start date on March 3,
2009.
e. Pursuant
to 40 CFR 262.34(a)(3), a generator may accumulate hazardous waste on-site for
90 days or less without a permit, provided that containers are labeled or
marked clearly with the words "Hazardous Waste." Respondent accumulated hazardous waste on-site,
without a permit, and did not label or clearly mark hazardous waste containers with
the words "Hazardous Waste.”
Specifically, one 55-gallon container of D001 and D018 Red Dye and one
55-gallon container of D001 – Waste Flammable Solids were not clearly marked
with the words “Hazardous Waste.”
Respondent
properly labeled the containers with the words “Hazardous Waste” on March 3,
2009.
f. Pursuant
to 40 CFR 262.34(a)(1)(i) referencing 40 CFR 265.174, a generator must conduct
weekly inspections of container storage areas.
Respondent failed to conduct weekly inspections of the container storage
area.
Respondent initiated
weekly inspections on or before March 30, 2009.
g. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.53, a copy of an up-to-date
contingency plan must be maintained at the facility and be provided to local emergency
personnel. Respondent failed to maintain
a copy of the contingency plan on-site.
h. Pursuant
to 40 CFR 262.34(a)(4) referencing 40 CFR 265.16(d)(1-4), certain hazardous
waste training related documents and records must be maintained on-site. Respondent did not maintain all of the
required hazardous waste training related documents and records on-site. Specifically, training records did not
include the following: job titles, job descriptions, a description of the type
and amount of required training and completion documents.
i. Pursuant
to 40 CFR 273.14(e) and 329 IAC 3.1-16-2(a)(4), a small quantity handler of universal
waste must label or mark each lamp or a container or package in which such lamps
are contained must be labeled or marked clearly with one of the following
phrases: “Universal Waste – Lamp(s),” or “Waste Lamp(s),” or “Used Lamps,” or
other words that accurately identify the universal waste lamps. Respondent did not properly label or mark one
four foot box of mercury containing fluorescent bulbs.
Respondent
properly labeled the containers with the words “Universal Waste – Lamp(s),” or
“Waste Lamp(s),” or “Used Lamps,” or other words that accurately identify the
universal waste lamps on or before March 30, 2009.
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.
Respondent
shall comply with statutes and rules listed in the findings here and/or above
at issue.
3.
Immediately
upon the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16(d).
Specifically, Respondent shall maintain a copy of the Contingency Plan
at the Site.
4.
Within
thirty (30) days of the Effective Date, Respondent shall comply with 40 CFR 262.34(a)(4)
referencing 40 CFR 265.16(d)(1-4). Specifically,
Respondent shall develop training records that include job titles, job
descriptions, a description of the type and amount of required training and
completion documents.
5.
Within
Forty-Five (45) days of the Effective Date, Respondent shall submit
documentation of the proper training records to the address listed in Paragraph
6 below.
6.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Linda
L. McClure, Enforcement Case Manager |
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Office
of Land Quality – Mail Code 60-02L |
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Indiana
Department of Environmental Management |
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7. Respondent
is assessed a civil penalty of Ten Thousand Dollars ($10,000). 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.
8. In
the event the terms and conditions of the following paragraphs are violated,
Complainant may assess and Respondent shall pay a stipulated penalty in the
following amount:
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Paragraph |
Action |
Penalty |
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Failure
to maintain Contingency Plan on-site. |
$250 per week |
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4 |
Failure
to develop training records as described. |
$250 per week |
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5 |
Failure
to submit documentation of proper training records. |
$250 per week |
9. Stipulated
penalties shall be due and payable within thirty (30) days after Respondent
receives written notice that Complainant has determined a stipulated penalty is
due. Assessment and payment of
stipulated penalties shall not preclude Complainant from seeking any additional
relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties
set out above, 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.
10. Civil
and stipulated 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:
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Indiana
Department of Environmental Management |
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Cashier
– Mail Code 50-10C |
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11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. This
Agreed Order shall remain in effect until IDEM issues a Resolution of Case
letter to Respondent.
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TECHNICAL RECOMMENDATION: |
RESPONDENT: |
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Department of Environmental Management |
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By: _________________________ |
By:
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Nancy L. Johnston, Section
Chief |
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Enforcement
Section |
Printed: ______________________ |
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Office of Land Quality |
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Title: ________________________ |
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Date: __________________ |
Date: _______________________ |
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COUNSEL FOR COMPLAINANT: |
COUNSEL FOR RESPONDENT: |
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For the Department of Environmental
Management |
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By: ________________________ |
By: ________________________ |
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Deputy Attorney General |
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Date: _______________________ |
Date: ______________________ |
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APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF
ENVIRONMENTAL |
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MANAGEMENT
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OF |
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For the Commissioner: |
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Signed 1/12/10 |
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Bruce
H Palin |
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Assistant Commissioner |
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Office of Land Quality |
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