STATE OF INDIANA |
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BEFORE THE INDIANA DEPARTMENT OF |
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ENVIRONMENTAL MANAGEMENT |
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COUNTY OF MARION |
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COMMISSIONER OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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v. |
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Case No. 2015-23390-W |
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Countrymark
Refining and Logistics, LLC, |
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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 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
is Countrymark Refining and Logistics, LLC (Respondent), which owns and
operates the Mount Vernon Refinery located at 1200 Refinery Road, in Mount
Vernon, Posey County, Indiana (the Site).
3.
Respondent
is authorized by National Pollutant Discharge Elimination System (NPDES) Permit
Number IN0002470 (the Permit) to discharge process wastewater, non-process
wastewater, sanitary wastewater, hydrostatic test water, and storm water
treated in accordance with the terms and conditions of the NPDES Permit from
its Mount Vernon Refinery into receiving waters named the Ohio River via
Outfall 001.
Respondent
is also authorized by the Permit to discharge intermittent discharges from storm
water retention Pond #3 in accordance with the terms and conditions of the
Permit from its Mount Vernon Refinery into receiving waters named Mill Creek
via Outfall 002.
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) via Certified Mail to Countrymark
Refining and Logistics, LLC.
6.
During
an investigation conducted by a representative of IDEM, violations were found,
as described below.
7.
Pursuant
to 327 Indiana Administrative Code (IAC) 5-2-8(1), and Part II.A.1 of the
Permit, Respondent is required to comply with all terms and conditions of the
Permit.
8.
Pursuant
to Part I.A.1 and Part I.A.2 of the Permit, Respondent is required to comply
with the effluent limitations contained in the Permit that are applicable to
the discharges from Outfall 001 and 002.
Discharge Monitoring Reports (DMRs) and Monthly Reports of Operation (MROs)
submitted by Respondent for the period of April 2014 through September 2015,
revealed violations of effluent limitations contained in Part I.A.1 of the
Permit for discharges from Outfall 001 as follows:
A.
The
daily maximum concentration limitation for Total Five-Day Biochemical Oxygen
Demand (TBOD5) was exceeded during November and December 2014.
B.
The
monthly average concentration limitation for TBOD5 was exceeded
during November and December 2014.
C.
The
daily maximum concentration limitation for pH was exceeded during May 2014.
D.
The
daily maximum concentration limitation for Total Suspended Solids (TSS) was
exceeded during May and December 2014, and September 2015.
E.
The
daily maximum concentration limitation for Total Recoverable Phenolics was
exceeded during November 2014.
F.
The
monthly average concentration limitation for Total Recoverable Phenolics was
exceeded during November 2014.
DMRs
and MROs submitted by Respondent for the period of April 2014 through September
2015, revealed violations of effluent limitations contained in Part I.A.2 of
the Permit for discharges from Outfall 002 as follows:
A.
The
daily maximum concentration limitation for TBOD5 was exceeded during
April 2014, and March June, and December 2015.
B.
The
daily maximum concentration limitation for TSS was exceeded during April 2014,
and March, April, June, and July 2015.
C.
The
daily maximum concentration limitation for Total Recoverable Chromium was
exceeded during July 2014.
D.
The
daily maximum concentration limitation for pH was exceeded during December
2015.
Respondent
failed to comply with effluent limitations contained in the Permit for
discharges from Outfall 001 and Outfall 002, in violation of 327 IAC 5-2-8(1),
Part II.A.1 of the Permit, Part I.A.1 of the Permit, and Part I.A.2 of the
Permit.
9.
Pursuant
to 327 IAC 5-2-13(a), and Part I.A.1 and Part I.A.2 of the Permit, to assure
compliance with permit terms and conditions, Respondent is required to comply
with the monitoring requirements contained in the Permit.
A
review of the DMRs and MROs for Outfall 001 and 002 revealed that Respondent
did not collect samples for pH at the frequency required by Part 1.A.2 of the
Permit during March and April 2015; did not collect samples for Phenols at the
frequency required by Part 1.A.2 of the Permit during December 2015; and did
not collect samples for Total Fluoride at the frequency required by Part 1.A.1
the Permit during August 2014.
Respondent
failed to comply with the monitoring requirements contained in the Permit, in
violation of 327 IAC 5-2-13(a), Part 1.A.1 of the Permit, and Part 1.A.2 of the
Permit.
10.
On
January 22, 2016, Respondent informed IDEM that it has taken corrective
measures to attempt to address the issues raised herein, including the
increased use of Aqua Shade to minimize the possibility of algae blooms, the
use of temporary wastewater storage structures to equalize flows during
turnarounds, and enhanced training, among other items.
11.
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 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 and 9 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 permit conditions 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
actions Respondent will take to evaluate and implement a means to consistently meet
effluent limitations contained
in the Permit, including TBOD5,
pH, TSS, Total Recoverable Phenolics, and Total
Recoverable Chromium. The CP shall
include an implementation and completion schedule, including specific milestone
dates.
4.
Respondent
shall, after completion of the work required pursuant to the approved CP from
Paragraph 3 above, demonstrate six consecutive months of compliance (Compliance
Demonstration) with the effluent limitations contained in its NPDES Permit for
Outfall 001 and Outfall 002. During the
Compliance Demonstration period, Respondent shall be subject to stipulated
penalties, as specified below, for violations of the effluent limitations.
5.
In
the event that Respondent fails to make the Compliance Demonstration,
Respondent shall, within ten (10) days of becoming aware that the Compliance
Demonstration cannot be achieved, submit notification to IDEM than an effluent
exceedance has occurred, and within sixty (60) days of becoming aware that the
Compliance Demonstration cannot be achieved, develop and submit to IDEM, for
approval, an Additional Action Plan which identifies the additional actions
that Respondent will take to achieve and maintain compliance with the effluent
limitations contained in its NPDES Permit.
The Additional Action Plan, if required, shall include an implementation
and completion schedule, including specific milestone dates.
6.
The
plans required by Paragraphs 3 and 5 above are subject to IDEM approval. 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. After three submissions of such
plan by Respondent, IDEM may seek civil enforcement of this Order.
Respondent,
upon receipt of written notification from IDEM, shall immediately implement the
approved plan and adhere to the milestone dates therein. The approved CP and Additional Action Plan
shall be incorporated into the Agreed Order and shall be deemed an enforceable
part thereof. Failure by Respondent to
submit any plan by the specified date, or to meet any of the milestones in the
approved plan, will subject Respondent to stipulated penalties as described
below. Failure to achieve compliance at
the conclusion of work under an Additional Action Plan will subject Respondent to
additional enforcement action.
7.
Respondent
shall submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan within 10 days of
completion of the requirements of each milestone.
8.
All
submittals required by this Agreed Order, unless Respondent is notified
otherwise in writing by IDEM, shall be sent to:
Taylor
Peters, Enforcement Case Manager |
Indiana
Department of Environmental Management |
Surface
Water, Operations & Enforcement Branch |
Office
of Water Quality – Mail Code 60-02W |
100
North Senate Avenue, Room 1255 |
Indianapolis,
IN 46204-2251 |
9.
Respondent
is assessed and agrees to pay a civil penalty of Fifteen Thousand Five Hundred
Twenty Five ($15,525). 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.”
10.
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. |
$500
per week late, or part thereof. |
4 |
For
any exceedance of the effluent limitations contained in the Permit during the
Compliance Demonstration. |
$500
per violation. |
5 & 6 |
Failure
to submit or modify the Additional Action Plan, if required, within the given
time period. |
$250
per week late, or part thereof. |
6 |
Failure
to meet any milestone date set forth in the approved CP or Additional Action
Plan. |
$500
per week late, or part thereof. |
7 |
Failure
to submit to IDEM a written report of progress or completion for each
milestone date included in the CP or Additional Action Plan. |
$250
per violation |
11.
Force
majeure, for purposes of this 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 which 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 these 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.
12.
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.
13.
Civil
and stipulated penalties are payable by check to the “Environmental Management
Special Fund.” Checks shall include the
Case Number 2015-23390-W of this action and shall be mailed to:
Office of
Legal Counsel |
Indiana
Department of Environmental Management |
IGCN, Rm
N1307 |
100 North
Senate Avenue |
Indianapolis,
IN 46204 |
14.
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.
15.
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.
16.
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.
17.
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.
18.
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 or any
applicable Federal or State law or regulation.
19.
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.
20.
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.
21.
Nothing
in this Agreed Order shall prevent IDEM [or anyone acting on its behalf] from
communicating with the United States Environmental Protection Agency (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 EPA or any other agency or entity.
22.
This
Agreed Order shall remain in effect until Respondent has complied with all
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 |
Countrymark Refining and Logistics,
LLC |
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By: ____________________________ |
By:
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Brian
Wolff, Branch Chief |
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Surface
Water, Operations and |
Printed: ____________________ |
Enforcement
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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 April 11, 2016 |
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Martha
Clark Mettler |
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Assistant Commissioner |
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Office of Water Quality |