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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. 2009-18816-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., which owns and/or operates a facility with
U.S. EPA I.D. number IND 000810861, 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 February 15, 2010, IDEM issued a Notice of Violation
("NOV") via Certified Mail to:
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Nick Spencer |
The Prentice-Hall Corporation
System, Inc. |
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Whiting Business Unit Leader |
Registered Agent for |
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BP Products North America, Inc. |
BP Products North America, Inc |
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5. Respondent
last notified EPA of Large Quantity Generator and Treatment, Storage, and/or
Disposal activities on February 12, 2008.
6. At
this location, Respondent operates a waste water treatment plant for its
refinery. Respondent has a post-closure
permit for a
7. 329
IAC 3.1 incorporates certain federal hazardous waste management requirements
found in 40 CFR Parts 260 through 270, and Part 273 including these identified
below.
8. During
an investigation including an inspection on June 9, 2009, conducted by a
representative of IDEM, the following violations were found:
a. Pursuant
to 40 CFR 264.15(a), the owner or operator must inspect his facility for malfunctions
and deterioration, operator errors, and discharges which may be causing-or may
lead to-(1) release of hazardous waste constituents to the environment or (2) a
threat to human health. The owner or
operator must conduct these inspections often enough to identify problems in
time to correct them before they harm human health or the environment.
As noted during the inspection,
Respondent did not conduct proper inspections of the SWSB. The final cover was damaged from heavy
equipment usage and it appeared that the cover was not proof-rolled prior to
staging heavy equipment and sludge boxes.
Ruts caused by vehicles and/or heavy equipment traffic were observed
next to the southern dewatering line and there was visible damage to the outer
shell of the dewatering line in multiple locations. There was evidence of ponding water on the surface
of the final cover due to poor grading and the lack of cap maintenance. Pot holes, soft spots, point contacts without
pads, staining, and releases of raw materials were also observed on the surface
of the final cover.
b. Pursuant
to 40 CFR 264.15(c), the owner or operator must remedy any deterioration or malfunction
of equipment or structures which the inspection reveals on a schedule which
ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already
occurred, remedial action must be taken immediately.
As noted during the inspection,
Respondent failed to remedy deterioration of the SWSB final cover. The final cover was damaged from heavy
equipment usage and it appeared that the cover was not proof-rolled prior to
staging heavy equipment and sludge boxes. Ruts caused by vehicles and/or heavy
equipment traffic were observed next to the southern dewatering line and there
was visible damage to the outer shell of the dewatering line in multiple
locations. There was evidence of ponding
water on the surface of the final cover due to poor grading and the lack of cap
maintenance. Pot holes, soft spots,
point contacts without pads, staining, and releases of raw materials were also
observed on the surface of the final cover.
c. Pursuant
to Permit Condition II.C., Respondent shall follow the inspection schedule in Attachment
B. The permittee shall remedy any
deterioration or malfunction discovered by an inspection as required by 329 IAC
3.1-9 and 40 CFR 264.15(c).
As noted during the inspection,
Respondent did not conduct proper inspections of the SWSB and failed to remedy
deterioration of the final cover.
d. Pursuant
to Permit Attachment B, B-1b and Exhibit B-1 Section 5.1.2, the written inspection
plan for the SWSB requires monthly visual inspections of the SWSB systems
identified in the SWSB Post-Closure Operations and Maintenance Plan (O&M) Exhibit
B-1 Section 5. The designated inspector
will visually inspect the landfill cover for erosion and/or deterioration,
ponded water, subsidence of cover and drainage ditch, ditch slope erosion,
growth of plant life, and rodent holes.
Any notable damage or unsuitable conditions will be documented in the
inspection log.
As noted during the inspection,
Respondent did not conduct proper inspections of the SWSB and failed to
document notable damage and unsuitable conditions in the inspection log.
e. Pursuant
to Permit Attachment B, B-2, if any deterioration or malfunctions are noted from
inspections at the SWSB, action will be taken to correct the identified
problem. Any deficiencies or repair needs identified during the monthly
inspections will be documented on a “Monthly Inspection Follow-Up Activities
Report.”
As noted during the inspection,
Respondent did not conduct proper inspections of the SWSB, failed to correct
identified problems, and failed to document deficiencies and needed repairs.
f. Pursuant
to Permit Attachment B, B-3, the SWSB inspections will be completed using the
Monthly Inspection Report. The
inspection records must include the date and time of the inspection, the name
of the inspector, a notation of the observations made, and the date and nature
of any repairs or other remedial actions.
As noted during the inspection,
Respondent failed to record site conditions and observations in the Monthly
Inspection Reports.
g. Pursuant
to 40 CFR 264.117(c), post-closure use of property on or in which hazardous wastes
remain after partial or final closure must never be allowed to disturb the integrity
of the final cover, liner(s), or any other components of the containment system,
or the function of the facility’s monitoring systems, unless approved by the commissioner.
As noted during the inspection,
Respondent's post-closure use of the property damaged the integrity of the
final cover. Operating and staging heavy
equipment along the southern dewatering line put the effectiveness of the
containment system and the function of the dewatering system at risk. The
vehicle tracks and ruts in the final cover leading up to the dewatering line
made it appear as if it was being used as a guardrail for staging heavy
equipment. There was also visible damage
to the outer shell of the southern dewatering line in multiple locations. Based on the amount of damage to the final
cover along the southern dewatering line, it appeared that the final cover was
not proof-rolled prior to staging the sludge boxes and other heavy
equipment. Due to poor grading and the
lack of cap maintenance there was evidence of ponding water on the surface of
the final cover. Pot holes, staining,
and releases of raw materials were also observed on the surface of the final
cover. Furthermore, a release of an
oil-like material occurred on the northeast side of the SWSB, near DW-3N, that
covered approximately 800 ft2 on the surface. It appeared that this area was being used to
repair or clean equipment.
h. Pursuant
to 40 CFR 264.310(b) and Permit Condition III.D., after final closure, the owner
or operator must comply with all post-closure requirements contained in 329 IAC
3.1-9 and 40 CFR 264.117 through 40 CFR 264.120, including maintenance and monitoring
throughout the post-closure care period.
The owner or operator must, in part, comply with the following
requirements of the permit:
1. Maintain
the integrity and effectiveness of the final cover, including making repairs to
the cover as necessary to correct the effects of settling, subsidence, erosion,
or other events; and
3. Prevent
run-on and run-off from eroding or otherwise damaging the final cover.
As noted during the inspection,
Respondent's post-closure use of the property damaged the integrity of the
final cover and Respondent did not take remedial actions to repair the final cover. Operating and staging heavy equipment along
the southern dewatering line put the effectiveness of the containment system
and the function of the dewatering system at risk. The vehicle tracks and ruts
in the final cover leading up to the dewatering line made it appear as if it
was being used as a guardrail for staging heavy equipment. There was also visible damage to the outer
shell of the southern dewatering line in multiple locations. Based on the amount of damage to the final
cover along the southern dewatering line, it appeared that the final cover was
not proof-rolled prior to staging the sludge boxes and other heavy
equipment. Due to poor grading and the
lack of cap maintenance there was evidence of ponding water on the surface of
the final cover. Pot holes, staining,
and releases of raw materials were also observed on the surface of the final
cover. Furthermore, a release of an
oil-like material occurred on the northeast side of the SWSB, near DW-3N, that
covered approximately 800 ft2 on the surface. It appeared that this area was being used to
repair or clean equipment.
i. Pursuant
to Permit Condition II.E., Respondent the shall maintain post-closure of the facility
as required by 329 IAC 3.1-9 and 40 CFR 264.117 and in accordance with the Post-Closure
Plan, Attachment C.
As noted during the inspection,
Respondent's post-closure use of the property damaged the integrity of the
final cover and Respondent did not take remedial actions to repair the final
cover. Operating and staging heavy equipment along the southern dewatering line
put the effectiveness of the containment system and the function of the
dewatering system at risk. The vehicle tracks and ruts in the final cover
leading up to the dewatering line made it appear as if it was being used as a
guardrail for staging heavy equipment.
There was also visible damage to the outer shell of the southern
dewatering line in multiple locations. Based
on the amount of damage to the final cover along the southern dewatering line,
it appeared that the final cover was not proof-rolled prior to staging the
sludge boxes and other heavy equipment.
Due to poor grading and the lack of cap maintenance there was evidence
of ponding water on the surface of the final cover. Pot holes, staining, and releases of raw
materials were also observed on the surface of the final cover. Furthermore, a release of an oil-like
material occurred on the northeast side of the SWSB, near DW-3N, that covered
approximately 800 ft2 on the surface. It appeared that this area was being used to
repair or clean equipment.
j. Pursuant
to Permit Attachment C, C-4b and C-4e, prior to loading the cover, areas selected
for staging equipment, materials, etc. shall be proof-rolled (if the
anticipated load on the cover is greater than 1 ton per square foot) with a
loaded (20 ton bed load) semi-truck to confirm the presence of soft, unstable
areas that may need to be reconditioned or replaced. In addition to proof-rolling, a rigid pad
shall be placed under any point load, such as the leg of a truck trailer, to
prevent punching of the leg through the cover.
The pad shall be sized to distribute across the cover the load applied
to the leg per the support capacity presented above. The pad shall be placed on
a level surface and the size shall no be less than 3 feet in any one direction.
Structures supported on below grade foundations will require a permit
modification. To help ensure the cap is maintained,
monthly inspections will be performed and documented on the Monthly Inspection
Report.
The SWSB cap will be inspected
monthly and cap maintenance will be conducted and described in the Post-Closure
Inspection Plan.
As noted during the inspection,
Respondent's post-closure use of the property damaged the integrity of the
final cover and Respondent did not take remedial actions to repair the final
cover. Operating and staging heavy
equipment along the southern dewatering line put the effectiveness of the
containment system and the function of the dewatering system at risk. The
vehicle tracks and ruts in the final cover leading up to the dewatering line
made it appear as if it was being used as a guardrail for staging heavy equipment. There was also visible damage to the outer
shell of the southern dewatering line in multiple locations. Based on the amount of damage to the final
cover along the southern dewatering line, it appeared that the final cover was
not proof-rolled prior to staging the sludge boxes and other heavy
equipment. Due to poor grading and the
lack of cap maintenance there was evidence of ponding water on the surface of
the final cover. Pot holes, staining,
and releases of raw materials were also observed on the surface of the final
cover. Furthermore, a release of an oil-like
material occurred on the northeast side of the SWSB, near DW-3N, that covered
approximately 800 ft2 on the surface. It appeared that this area was being used to
repair or clean equipment.
k. Pursuant
to IC 13-30-2-1(4), a person may not deposit or cause or allow the deposit of any
contaminants or solid waste upon the land, except through the use of sanitary landfills,
incineration, composting, garbage grinding, or another method acceptable to the
solid waste management board.
As noted during the inspection,
Respondent deposited and/or caused or allowed the deposit of contaminants or
solid waste upon the land in a method unacceptable to the solid waste
management board. A release of an oil-like
material occurred on the northeast side of the SWSB, near DW-3N, that covered
approximately 800 ft2 on the surface.
l. Pursuant
to 327 IAC 2-6.1-5(5), any spill for which a spill response has not been conducted
must be reported.
As noted during the inspection,
Respondent did not respond to a release of an oil-like material on the
northeast side of the SWSB, and did not report the spill.
m. Pursuant
to 40 CFR 264.16, facility personnel must successfully complete a program of classroom
instruction or on-the-job training that teaches them to perform their duties in
a way that ensures the facility’s compliance with the requirements of this
part.
As noted during the inspection, the
facility personnel conducting inspections at the SWSB had not received adequate
training that taught them to perform their job duties. The training program
provided by the facility did not properly address the inspection procedures for
identifying and documenting unsuitable conditions at the site. A review of the Monthly Inspection Reports
for the SWSB did not include notations of the site conditions observed during
the inspection. The damage observed to
the final cover occurred over an extended period of time and the Monthly
Inspection Reports did not accurately document the site conditions.
9. The
parties met to discuss this matter on May 10, 2010. At that time, Respondent submitted to IDEM
for review the following four Draft documents (collectively known as the
"CAP Plan" for the purposes of this Agreed Order) in order to address
the violations cited in the Findings above: (1)
SWSB-Cap Usage Plan; (2) Remediation
Mgmt. Procedure EP-RM-047; (3)
Post-Closure Permit Inspection for SWSB Landfill Cover Requirements; and
(4) Annual SWSB RCRA Training BP Whiting
Refinery. The parties met via conference
call on June 28, 2010 to further discuss the CAP Plan. Based on IDEM's comments, Respondent
submitted revisions to the CAP Plan on August 3, 2010. A follow-up conference call was held on August
9, 2010, at which time the parties discussed IDEM's comments to the revised CAP
Plan. Respondent agrees to submit the
above noted CAP Plan in final form for IDEM review and approval.
10. 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, rules, and/or permit conditions listed in the
findings here and/or above at issue.
3. Within
thirty (30) days of the Effective Date, Respondent shall submit to IDEM for
approval the CAP Plan identified in Finding 9 above in final form, which
includes provisions to prevent future damage to the SWSB cover and containment
system. The CAP Plan shall include, but not be limited to, requirements under the
post-closure permit and 40 CFR 264, as follows:
a. Enhanced
routine procedures for maintaining the integrity and effectiveness of the final
cover, including making repairs to the cover as necessary to correct the
effects of settling, subsidence, erosion, or other events, and for preventing
run-on and run-off from eroding or otherwise damaging the final cover;
b. Identification
of possible future usages at the SWSB, corresponding problems which may result
from each usage, and actions necessary to prevent such problems from occurring. Ways to prevent damage to the containment
system and the dewatering system from vehicle and heavy equipment usage should
be included;
c. Identification
and implementation of an effective system for inspections at the SWSB which
allows for timely identification, documentation, and remediation of discovered problems;
d. Identification
and implementation of an effective training program for employees working at
the SWSB; and
e. Procedures
to be followed in the event of a spill, including:
(1) Actions
to contain or manage any type of spill;
(2) Mitigation
of any adverse effects of the spill; and
(3) Procedures
for reporting the spill to any applicable local emergency or health authorities,
and to IDEM, in accordance with 327 IAC 2-6.1.
4. Upon
approval of the CAP Plan, Respondent shall implement the Plan according to the timeframes
found therein.
5. Respondent
shall submit a permit modification application and receive approval from IDEM whenever
applicable, including if one is necessary for the CAP Plan, or any part thereof.
6. In
the event IDEM determines that any plan submitted by Respondent is deficient or
otherwise unacceptable, Respondent shall revise and resubmit the plan to IDEM
in accordance with IDEM's notice in accordance with applicable rules and
regulations. After three (3) submissions
of such plan by Respondent, IDEM may modify and approve any such plan and Respondent
must implement the plan as modified by IDEM.
The approved plan shall be incorporated into this Agreed Order and shall
be deemed an enforceable part thereof.
7. All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
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Brenda Lepter, 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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8. Respondent
is assessed a civil penalty of Sixteen Thousand Two Hundred Dollars ($16,200). 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.
9. 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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Failure
to submit the CAP Plan required by Paragraph 3 above |
$1,000
per week |
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Failure
to implement any part of the approved CAP Plan per Order |
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Requirement
No. 4 |
$750
per week |
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Failure
to comply with Order Requirement No. 6 |
$500
per week |
10. 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.
11. 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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12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. This
Agreed Order shall remain in effect until IDEM verifies that Respondent has complied
with Order paragraphs 3, 4, 5, 6, and 8 above.
IDEM will issue a Resolution of Case letter to Respondent thereafter.
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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
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
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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 THIS |
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DAY
OF |
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For the
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Signed on
November 9, 2010 |
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Bruce H Palin |
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Assistant
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Office of
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