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STATE OF
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BEFORE THE
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COUNTY OF
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ENVIRONMENTAL
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COMMISSIONER
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Complainant, |
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Case No. 2023-29368-A |
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BP PRODUCTS
NORTH AMERICA INC. AND LINDE INC., |
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Respondents. |
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AGREED ORDER
Complainant and Respondents 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. Respondents’ entry into this Agreed Order shall not constitute a waiver
of any defense, legal or equitable, which Respondents 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.
Respondents
are BP Products North America Inc. – Whiting Business Unit, which owns and
operates the stationary refinery and marketing terminal, located at 2815
Indianapolis Boulevard, in Whiting, Lake County, Indiana and Linde Inc., which
owns and operates Plant B, located at 2551 Dickey Road, East Chicago, Lake
County, Indiana (collectively Plant ID No. 089-00453) (“Respondents”).
3.
IDEM has jurisdiction over the parties and the
subject matter of this action.
4.
Pursuant to IC 13-30-3-3, IDEM issued an
Amended Notice of Violation (“NOV”) via Electronic and Certified Mail to:
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5.
During
an investigation conducted by a representative of IDEM, the following violations
were found:
Based on the
Enforcement Action Letters issued to BP
Products North America Inc. – Whiting Business Unit on May 1, 2023 and June 6, 2023:
a.
Pursuant
to Part 70 Permit 089-42328-00453 (“Permit”) condition D.43.8, the carbon
monoxide (“CO”) and nitrogen oxides (“NOX”) continuous emission monitoring
systems (“CEMS”) for heaters HU-1 and HU-2 shall be calibrated, maintained, and
operated for measuring CO and NOX in accordance with the applicable
requirements in Section C.
During the fourth quarter of 2020,
Respondents experienced 411.4 hours, or 18.8% of NOX CEMS downtime for the New
HU Heater HU-1 relative to 2,192 hours of operation, in violation of Permit
condition D.43.8.
During the first quarter of 2021, Respondents experienced 94.5 hours, or 4.4%
of NOX CEMS downtime for the New HU Heater HU-1 relative to 2,151.1 hours of
operation, in violation of Permit condition D.43.8.
During the fourth quarter of 2020, Respondents experienced 124.4 hours, or 5.7%
of CO CEMS downtime for the New HU Heater HU-1 relative to 2,192 hours of
operation, in violation of Permit condition D.43.8.
b.
Pursuant
to Permit condition D.43.7, the H2S or Total Sulfur (if approved in an
alternative monitoring plan) CEMS for the New HU Flare shall be calibrated,
maintained, and operated in accordance with the applicable requirements in
Section C.
During the first quarter of 2021,
Respondents experienced 327.2 hours, or 15.1% of sulfur dioxide (“SO2”) CEMS
downtime for the New HU Flare relative to 2,160 hours of operation, in
violation of Permit condition D.43.7.
During the second quarter of 2021, Respondents experienced 126.8 hours, or 5.8%
of SO2 CEMS downtime for the New HU Flare relative to 2,184 hours of operation,
in violation of Permit condition D.43.7.
6.
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, Respondents acknowledge notice
of this right and waive 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 Respondents. This Agreed
Order shall have no force or effect until the Effective Date.
2.
Respondents shall comply with the rules and
conditions listed in the findings of fact above.
3.
All submittals required by this Agreed Order,
unless IDEM notifies the Respondents otherwise in writing, shall be sent to:
Matthew
Chaifetz, Senior Enforcement Case Manager
Office of Air Quality
Indiana
Department of Environmental Management
100 North
Senate Avenue
Indianapolis,
IN 46204-2251
mchaifet@idem.IN.gov
4.
Pursuant to IC 13-30-4-1, Respondents are
assessed and agree to pay a civil penalty of Thirty-Three Thousand Dollars ($33,000.00). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the thirtieth day being the “Due Date.”
5.
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
6.
In the event that the monies
due to IDEM pursuant to this Agreed Order are not paid on or before their Due
Date, Respondents shall pay interest on the unpaid balance 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 Respondents pay any unpaid balance. Such
interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified
in Paragraph 5, above.
7.
Signatories to this Agreed Order certify that
they are fully authorized to execute this Agreed Order and legally bind the
party they represent.
8.
This Agreed Order shall apply to and be binding
upon Respondents and all successors and assigns. Respondents shall provide a
copy of this Agreed Order, if in force, to any subsequent owners, successors,
or assigns before ownership rights are transferred.
9.
No change in ownership, corporate, or
partnership status of Respondents shall in any way alter the Respondents’ status
or responsibilities under this Agreed Order.
10.
Respondents shall ensure that all contractors,
firms, and other persons performing work under this Agreed Order comply with
the terms of this Agreed Order.
11.
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.
12.
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 Respondents pursuant
to this Agreed Order, shall not in any way relieve Respondents of the obligation
to comply with the requirements of any applicable permits or any applicable
Federal or State laws or regulations.
13.
Complainant does not, by its approval of this
Agreed Order, warrant or aver in any manner that Respondents’ 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 Respondents may incur as a result of
Respondents’ efforts to comply with this Agreed Order.
14.
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 Findings of Fact.
15.
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 Respondents may incur as a result of such communications with the U.S. EPA or any
other agency or entity.
16.
This Agreed Order shall remain in effect until
Respondents have complied with all terms and conditions of this Agreed Order
and IDEM has issued a Resolution of Case letter to Respondents.
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TECHNICAL RECOMMENDATION: |
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RESPONDENT: |
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Department of Environmental Management |
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BP Products North America
Inc. |
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By: |
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By: |
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David P. McIver, Chief |
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Printed: |
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Enforcement Section |
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Title: |
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Office of Air Quality |
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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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, 2023. |
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For the Commissioner: |
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Signed on November 1, 2023 |
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Matthew
Stuckey, Assistant Commissioner |
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Office of Air Quality Indiana Department of Environmental
Management |
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