STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2023-29129-H
					)
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 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 BP Products North America Inc. (“Respondent”), which owns and operates the Whiting Refinery, with United States Environmental Protection Agency (“EPA”) ID No. IND074375585, located at 2815 Indianapolis Blvd, in Whiting, Lake County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Respondent waives the issuance of a Notice of Violation and the settlement period of sixty (60) days as provided for by IC 13-30-3-3.

5. Respondent notified EPA of Large Quantity Generator activities on August 26, 2022.

6. 329 Indiana Administrative Code (“IAC”) 3.1 incorporates federal hazardous waste management requirements found in 40 Code of Federal Regulations (“CFR”) Parts 260 through 270 and Part 273, including those identified below.

7. On November 10, 2022, Respondent submitted a “Self-Disclosure and Environmental Audit Form” regarding improper classification of K171 listed hazardous waste.

8. As disclosed in the November 10, 2022“Self-Disclosure and Environmental Audit Form,” the following violations were found:

a. Pursuant to 40 CFR 262.11, a person who generates a solid waste, as defined in 40 CFR 261.2, must make an accurate determination as to whether that waste is a hazardous waste in order to ensure wastes are properly managed according to applicable RCRA regulations.

Pursuant to 40 CFR 262.11(c), the person must then use knowledge of the waste to determine whether the waste meets any of the listing descriptions under subpart D of 40 CFR part 261.

Respondent re-evaluated its previous waste determination of the spent catalyst from the Vapor Recovery Unit 400 (VRU 400) reactors and determined the spent catalyst from three reactors (R-431, R-432A, and R-432B) met the definition of spent “hydrotreating catalyst”, i.e., K171 listed hazardous waste. In addition, three additional reactors were identified in the Isomerization Unit (D-1, D-2, and D-26) that should also be classified as K171 listed hazardous waste.

b. Pursuant to IC 13-30-2-1(12), a person may not cause or allow the transportation of a hazardous waste without a manifest if a manifest is required by law.

Pursuant to 40 CFR 262.20(a)(1), a generator that transports, or offers for transport a hazardous waste for offsite treatment, storage, or disposal, or a treatment, storage, or disposal facility that offers for transport a rejected hazardous waste load, must prepare a Manifest (OMB Control number 2050-0039) on EPA Form 8700-22, and, if necessary, EPA Form 8700-22A.

Between 2015 and 2020, Respondent allowed six disposal events of K171 listed hazardous waste to be transported offsite without a manifest, and three (3) events of waste transported offsite as a characteristic hazardous waste but not identified as a K171 waste.

c. Pursuant to 40 CFR 262.20(b), a generator must designate on the manifest one facility which is permitted to handle the waste described on the manifest.

Between 2015 and 2020, Respondent allowed six (6) events of K171 listed hazardous waste to be transported offsite without a manifest designating a facility that was permitted to handle K171 resulting in the K171 being disposed in landfills not permitted to handle K171 waste.

d. Pursuant to 40 CFR 262.17(a)(9), the large quantity generator complies with all applicable requirements under 40 CFR part 268.

Pursuant to 40 CFR 268.7(a), a generator must determine if a hazardous waste is restricted from land disposal and if the waste has to be treated before being land disposed.

Respondent failed to determine if the K171 listed hazardous waste, generated between 2015 and 2020, was restricted from land disposal or if treatment was required prior to land disposal.

9. Orders of the Commissioner are subject to administrative review by the Office of Environmental Adjudication under IC 4-21.5; however, in recognition of the settlement reached, Respondent acknowledges notice of this right and 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 the statute and rules listed in the findings of fact above.

3. Pursuant to IC 13-30-4-1, Respondent is assessed and agrees to pay a civil penalty, derived from the economic benefit occurred, of Three Hundred and Eighty-One Thousand Two Hundred and Seventy Dollars ($381,270). After this Agreed Order is adopted (signed by the Assistant Commissioner of the Office of Land Quality), Respondent shall pay by the due date printed on the Invoice that will be attached to the adopted Agreed Order.

Civil penalties are payable to the “Environmental Management Special Fund” by:

Mail:

Civil 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:

Indiana Department of Environmental Management

Accounts Receivable

IGCN, Room 1340

100 North Senate Avenue

Indianapolis, IN 46204

Online:

Accounts Receivable is accepting payments online by e-Check, Master Card, Visa or Discover. Please visit www.IN.gov/IDEM. Under Online Services, click Online Payment options and follow the prompts. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

Phone:

You may also call us at 317-234-3099 and follow the instructions for Master Card, Visa or Discover payments. A processing fee of $1 plus 1.99% will be charged for credit card payments.  A processing fee of $1.00 will be charged for eCheck payments.

The Case Number is required to complete the process.

4. 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 an additional penalty of 10 percent, payable to the “Environmental Management Special Fund,” and shall be payable to IDEM in the manner specified in Paragraph 3, above.

5. Signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent.

6. This Agreed Order shall apply to and be binding upon Respondent and all successors and assigns. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners, successors, or assigns before ownership rights are transferred.

7. No change in ownership, corporate, or partnership status of Respondent shall in any way alter the Respondent’s status or responsibilities under this Agreed Order.

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

9. 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.

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 the obligation to comply with the requirements of any applicable permits or any applicable Federal or State laws or regulations.

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 violations specified in the NOV.

13. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the U.S. Environmental Protection Agency (U.S. 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 U.S. 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.

TECHNICAL RECOMMENDATION:			RESPONDENT:
Department of Environmental Management
By:			By:
	Jennifer Reno, Chief		Printed:
	Land Enforcement Section		Title:
	Compliance Branch
	Office of Land Quality
Date:			Date:
			COUNSEL FOR RESPONDENT:
			By:
			Printed:
			Date:
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		DAY OF		, 20_____
			For the Commissioner:
			Signed 2/17/2023
			Peggy Dorsey
			Assistant Commissioner
			Office of Land Quality