STATE OF INDIANA	)	SS:	BEFORE THE INDIANA DEPARTMENT OF
	)		ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION	)
COMMISSIONER OF THE DEPARTMENT			)
OF ENVIRONMENTAL MANAGEMENT,			)
			)
Complainant,			)
			)
v.			)	Case No. 2016-24096 -W
			)
BP Products north america inc.,			)
			)
Respondent.			)

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 alleged 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 BP Products North America Inc. (Respondent), which owns and operates the Whiting Refinery, a petroleum refinery located at 2815 Indianapolis Boulevard, in Whiting, Lake County, Indiana (the Site).

3. Respondent is authorized by National Pollutant Discharge Elimination System (NPDES) Permit Number IN0000108 (the Permit) to discharge wastewater, treated in accordance with the terms and conditions of the NPDES Permit, from its wastewater treatment plant (WWTP) into waters of the State consisting of Lake Michigan via Outfall 005 (the discharge from the diffuser located in Lake Michigan). The discharge from Outfall 005 is limited to treated process wastewater from normal refinery operations, stormwater, and other specified flows.

4. Respondent is also authorized by the Permit to discharge non-contact cooling water from Outfall 002 into Lake Michigan, and to discharge storm water associated with industrial activity from the J&L and Lake George areas of the refinery from Outfalls 003 and 004 into the Lake George Branch of the Indiana Ship Canal. This case deals only with violations relating to Outfall 005.

5. IDEM has jurisdiction over the parties and the subject matter of this action pursuant to IC 13-30-3.

6. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to BP Products North American Inc. Whiting Refinery.

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 Indiana Code (IC) 13-30-2-1, 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 in any form that causes or would cause pollution that violates or would violate rules, standards, or discharge or emission requirements adopted by the appropriate board under the environmental management laws.

Pursuant to 327 IAC 2-1.5-8(b)(1) and Part I.B.1 of the Permit, at all times the discharge from any and all point sources specified in this permit shall not cause receiving waters including waters within the mixing zone, to contain substances, materials, floating debris, oil, scum, or other pollutants:

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 or sheen, odor, or other conditions in such a 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.

During inspections conducted on July 28, 2016, August 4, 2016, and August 9, 2016, IDEM staff noted that the final effluent, as observed onshore, prior to the discharge from Outfall 005 was brown and turbid. IDEM staff also observed foaming in the final effluent onshore prior to the discharge from Outfall 005 on August 4, 2016. The condition of the effluent observed threatened to cause a violation of the narrative requirements of Part I.B.1 of the Permit and 327 IAC 2-1.5-8(b)(1), and thus violated IC 13-30-2-1.

9. Pursuant to Part I.A.1 of the Permit, Respondent is required to comply with the discharge limitations contained in the Permit that are applicable to the discharges from Outfall 005.

Noncompliance Reports, Discharge Monitoring Reports (DMRs), and Monthly Monitoring Reports (MMRs) submitted by Respondent for the time period of February, July and August 2016 revealed violations of the Total Suspended Solids (TSS) limitations contained in Part I.A.1 of the Permit. The daily maximum loading limitation for TSS was exceeded on February 25, July 14, August 1, and August 2, 2016, in violation of 327 IAC 5-2-8(1) and Part I.A.1 of the Permit.

10. Pursuant to 327 IAC 5-2-8(9) and Part II.B.1 of the Permit, Respondent shall at all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for the collection and treatment which are installed or used by Respondent and which are necessary for achieving compliance with the terms and conditions of the Permit.

During the inspections on July 28, 2016, August 4, 2016, and August 9, 2016, IDEM staff rated operation of the facility as unsatisfactory for reasons that included the following: On August 4 and 9, 2016, the two aeration tanks appeared heavy in mixed liquor suspended solids (MLSS) and were covered in a thick foam layer; both secondary clarifiers were covered in a foam/solids layer; and the secondary effluent was turbid and brown in color. Respondent failed to maintain in good working order and efficiently operate all WWTP facilities, in violation of 327 IAC 5-2-8(9) and Part II.B.1 of the Permit.

11. Pursuant to 327 IAC 5-2-8(3) and Part II.A.2 of the Permit, Respondent shall take all reasonable steps to minimize or correct any adverse impact to the environment resulting from noncompliance with the Permit. During periods of noncompliance, Respondent shall conduct such accelerated or additional monitoring for the affected parameters as appropriate or as requested by IDEM, to determine the nature and impact of the noncompliance.

During portions of the noncompliance period in July and August 2016, Respondent increased final effluent sampling frequencies for certain parameters; however, at the time of inspections during July and August, facility personnel were unable to provide basic process control data necessary for making operational adjustments during the period of noncompliance. Respondent was not able to provide a definitive answer as to the root cause of the operational problems occurring at the facility when questioned by IDEM staff. At the time of IDEM’s inspections in July and August 2016, Respondent failed to satisfactorily demonstrate that it took all reasonable steps to minimize or correct the adverse impact of the noncompliance, in violation of 327 IAC 5-2-8(3) and Part II.A.2 of the Permit.

Following issuance of the NOV, Respondent submitted additional information regarding process control data collected and compliance actions implemented to address the noncompliance.

12. IDEM sent an Inspection Summary/Enforcement Referral letter to Respondent on September 9, 2016, which explained the violations noted during the inspections, and notified Respondent that these issues would be processed as an enforcement case. IDEM received a written response from Respondent regarding these issues on November 7, 2016. The response also indicated that an investigation into the cause of the noncompliance was underway. Further explanation of the root cause of noncompliance should be submitted following completion of the investigation, as required by Order Paragraph 3 below. Respondent claimed the affirmative defense of an upset, pursuant to 327 IAC 5-2-8(12) and Part II.B.3 of the Permit for these violations. IDEM does not agree that the upset defense is applicable.

13. 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 have no force or effect until the Effective Date. The Effective Date shall be the date this Agreed Order is adopted by Complainant or Complainant’s delegate (as evidenced by signature), and the adopted Agreed Order has been received by Respondent. In addition to addressing the violations cited in Paragraphs 7-11 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 statutes, rules, and Permit conditions listed in the Findings of Fact above.

3. Within 30 days of the Effective Date, Respondent shall submit to IDEM a written response explaining the root cause of the noncompliance stated in the Findings of Fact above that occurred during July and August 2016.

4. Respondent shall ensure that its WWTP is at all times maintained in good working order and that all facilities and systems for collection and treatment are efficiently operated. Specifically, within 90 days of the Effective Date, Respondent shall develop and submit to IDEM for review a Compliance Plan (CP) which includes:

a. Actions Respondent will take to maintain compliance with TSS limitations contained in the Permit;

b. Operational changes, both temporary and permanent implemented during the period of noncompliance to return the facility to compliance with the terms and conditions of the Permit, and to prevent future noncompliance.

The CP shall include an implementation and completion schedule, including specific milestone dates.

5. Respondent shall, after completion of the work required pursuant to the approved CP from Paragraph 4 above, demonstrate six consecutive months of compliance (Compliance Demonstration) with the terms and conditions of its NPDES Permit identified in the Findings of Fact above, specifically including compliance with TSS limitations, and efficient operation and maintenance of the facility. During the Compliance Demonstration, Respondent shall be subject to stipulated penalties, as specified below, for violations of the terms and conditions of the Permit.

6. In the event that Respondent fails to make the Compliance Demonstration, Respondent shall submit notification to IDEM that a violation of the Permit occurred no more than ten (10) days after becoming aware of the violation. Within thirty (30) days of becoming aware that the Compliance Demonstration cannot be achieved, Respondent shall 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 terms and conditions of its NPDES Permit. The Additional Action Plan, if required, shall include an implementation and completion schedule, including specific milestone dates.

7. The plans required by Paragraphs 4 and 6 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.

8. 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 considered incorporated into the Agreed Order and shall be deemed an enforceable part thereof, beginning upon receipt of written notification of approval from IDEM. 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. Following completion of the actions included in the Additional Action Plan, if necessary, the Compliance Demonstration will re-start, and Respondent shall demonstrate six consecutive months of compliance, as explained in Order Paragraph 5. Failure to achieve compliance at the conclusion of work under an Additional Action Plan may subject Respondent to additional enforcement action.

9. 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.

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

Edward Judson, Enforcement Case Manager

Office of Water Quality – IGCN 1255

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

ejudson@idem.in.gov

Unless IDEM is notified otherwise in writing by the Respondent, all of IDEM’s responses required by this Agreed Order shall be sent to:

Linda Wilson, Environmental Manager

Whiting Business Unit

linda.wilson2@bp.com

and

Alan Seese, Environmental Manager

Whiting Business Unit

alan.seese@bp.com

11. Respondent is assessed and agrees to pay a civil penalty of Forty Seven Thousand, Dollars ($47,000). Said penalty amount shall be due and payable to the Environmental Management Special Fund within 30 days of the Effective Date; the 30^th day being a “Due Date.”

12. 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 response to IDEM within the required time period.	$500 per week late, or part thereof.
4	Failure to maintain efficient and effective operation of the facility as required by Part II.B.1 of the Permit.	$250 per violation.
4, 7	Failure to submit or modify the CP within the required time period.	$500 per week late, or part thereof.
5	For violations of terms and conditions of the Permit, identified in the above Findings of fact, during the Compliance Demonstration.	$500 per violation.
6, 7	Failure to submit or modify the Additional Action Plan, if required, within the given time period.	$250 per week late, or part thereof.
8	Failure to meet any milestone date set forth in the approved CP or Additional Action Plan.	$500 per week late, or part thereof.
9	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

13. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that IDEM has determined a stipulated penalty is due, the 30^th 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.

14. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number 2016-24096-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

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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	BP Products North America Inc.
By:________________________	By:________________________
Dave Tennis, Chief
Water Enforcement Section	Printed:_____________________
Surface Water, Operations and
Enforcement Branch	Title:_______________________
Office of Water Quality
Date:_______________________	Date:_______________________
	COUNSEL FOR RESPONDENT:
	By:________________________
	Date:______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS ______ DAY OF ________________________, 20___.
	For the Commissioner:
	Signed on May 1, 2017
	Martha Clark Mettler
	Assistant Commissioner
	Office of Water Quality