Converted WP file ./CO/B-1915

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STATE OF INDIANA    )        BEFORE THE INDIANA DEPARTMENT
                ) SS:        OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION    )

COMMISSIONER OF THE DEPARTMENT    )
OF ENVIRONMENTAL MANAGEMENT,    )
                            )
        Complainant,            )
                            )
            v.                )    Cause No B-1915
                            )
BIG MAN OIL COMPANY, INC.            )
                            )
        Respondent.                )

NOTICE AND ORDER OF THE
COMMISSIONER OF THE
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

VIA CERTIFIED MAIL No. ________________

To:    Mr. Robert Sterge, President
    Big Man Oil Company, Inc.
    P. O. Box 1181
    Owensboro, Kentucky 42302

Following is the Notice and Order of the Commissioner of the Department of Environmental Management (IDEM) issued to the Respondent, Big Man Oil Company, Inc., Owensboro, Kentucky, for violation of the Indiana Code (IC) and Administrative Rules (IAC) involving spills of crude oil to waters of the state located north of Mariah Hill, Indiana in Spencer County. This Order is issued pursuant to IC 13-30-3 and IC 4-21.5-3-6 and is based on violations found during investigations conducted by IDEM's Office of Environmental Response. During those investigations, it was determined that the Respondent was in violation of the Indiana

Administrative Rules and the Indiana Code, as specified below:

FINDINGS OF VIOLATION

1.    On October 26, 1995, the IDEM Office of Environmental Response was informed by the the U.S. EPA, Region V that a local citizen had observed during the previous day that Hunley Creek was contaminated with what appeared to be oil. IDEM's resulting investigation included cooperative evaluation with the Indiana Department of Natural Resources, which confirmed the spill with an on-site investigation. It was determined that approximately ten (10) barrels of oil and ten (10) to fifteen (15) barrels of brine had been spilled at the Big Man Oil Company oil production operation. The IDEM on-site investigation on October 26 and 27, 1995, revealed the spill originated from a ruptured hose on the morning of October 25, 1995, and the oil had migrated into waters of the state as a result of Big Man Oil Company's failure to immediately contain the crude oil release and immediately clean it up. The Big Man Oil Company's failure to timely report, contain and cleanup the spill constitutes a violation of 327 IAC 2-6-2, as effective on the date of the spill.

2.     Administrative Rule 327 IAC 2-6-1 stated in part, that:

        a.    "Spill" means any unexpected, unintended, abnormal, or unapproved dumping, leakage, drainage, seepage, discharge or other loss of oil, hazardous and/or otherwise objectionable substance which enters or threatens to enter the waters of the state.

        b.    "Spill report" includes the location and time of the spill; the identification of the substance spilled; the quantity of substance that has been or may further be spilled; the identification of the person making the spill report; and what measures have been or will be undertaken to contain and/or clean-up the spill.

3.    Administrative Rule 327 IAC 2-6-2, required in part, that any person who owns, operates, controls or maintains any mode of transportation shall, in the event of a spill from said mode of transportation of such volume or mass as to cause or threaten to cause damage to the public health, safety or welfare, aquatic biota, animal life, plant life:

        (1) Immediately communicate a spill report to the Office of Environmental Response, Department of Environmental Management, 100 N. Senate Ave., P.O. Box 6015, Indianapolis, Indiana, 46206-6015 (317) 233-7745, as soon as said person or said person's agent knows or should have known of said spill...

        (3) Immediately contain said spill or cause the same to be done.

        (4) Either immediately after or during the containment, whichever is most practicable, clean-up said spill or cause the same to be done.

4.    327 IAC 2-6 was repealed in 1997 and replaced with 327 IAC 2-6.1.

5.    Administrative Rule 327 IAC 2-1-6(a)(1) states, in substance, that all waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil or scum attributable to municipal, industrial, agricultural, and other land use practices or other discharges:

        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, odor or other conditions in such 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.

6.    Indiana Code IC 13-1-3-8 (now IC 13-18-4-5, as of July 1, 1996) states, in substance, that it is unlawful for any person to throw, run, drain, or otherwise dispose into any of the streams or waters of Indiana, or to cause, permit, or suffer to be thrown, run, drained, allowed to seep, or otherwise disposed into any waters, any organic or inorganic matter that causes or contributes to a polluted condition of any waters, according to pertinent administrative rules.

7.    Indiana Code IC 13-7-4-1 (now IC 13-30-2-1, as of July 1, 1996) states, in substance, that no person may emit or allow or threaten to emit or allow any contaminant, either alone or in combination with contaminants from other sources, into the environment which causes pollution that violates rules, standards, or discharge requirements of the state.

8.    On October 25, 1995, Respondent allowed crude oil to migrate into Hunley Creek in violation of 327 IAC 2-1-6(a)(1), IC 13-18-4-5 and IC 13-30-2-1.

9.    Furthermore, on February 22, 1996, a spill report from Spencer County officials resulted in a finding by IDEM personnel that Respondent was responsible for an oil sheen on Hunley Creek northeast of Mariah Hill in Spencer County, Section 12, Township 4S, Range 5W, and upstream of the October incident in Hunley Creek. Respondent did not immediately place oil absorbent booms in the creek after a subsurface oil transfer line was found to be releasing oil into Hunley Creek, in violation of 327 IAC 2-6-2(3). Also, the brine tanks at the facility were leaking brine into Hunley Creek. The release of oil and brine into Hunley Creek constitutes violation of 327 IAC 2-1-6(a)(1), IC 13-18-4-5 and

IC 13-30-2-1.

10.    On February 25, 1996, Respondent reported to IDEM a spill during that day of eighty- four (84) gallons of oil from its tank which ruptured at its installation located in Section 12, Township 4S, Range 5W, resulting in crude oil running into Hunley Creek. A vacuum truck removed the oil product which was contained behind the absorbent boom put in place on February 23, 1995, to control the previous day's transfer line oil release. However, the IDEM investigation at this incident location northeast of Mariah Hill on February 26, 1996, found no clean-up crew on-site cleaning up the oil. There had been no replacement of the oil absorbent boom with a fresh pad and oil had yet to be cleaned up behind the boom or along the banks of the ditch and creek, in violation of 327 IAC 2-6- 2(4).

11.    Pursuant to IC 13-30-3-3 (IC 13-7-11-2 prior to July 1, 1996), IDEM issued a Notice of Violation on July 24, 1996, to:

            Mr. Robert Sterge, Resident Agent
            Big Man Oil Company
            P.O. Box 1181
            Owensboro, Kentucky 42301

12. The Respondent received the Notice of Violation on or about August 2, 1996.

13. The Notice of Violation contained an offer to enter into an Agreed Order containing actions required to correct the violation. More than sixty (60) days have passed since this offer was made.

14. The Respondent has not entered into an Agreed Order resolving these violations.

ORDER

1.    The Respondent shall formulate and submit to IDEM within thirty (30) days a Spill Control and Countermeasure Plan (SPCC) for all its operations in Indiana, which explains what will be done by Big Man Oil Company to prevent oil and brine spills into Indiana waterways and how compliance with state rules and statutes pertaining to water pollution will be achieved. The SPCC shall be specific as to each site of operation and shall include, but not be limited to:

        a.    discussion of estimated direction, quantity, and rate of oil flow, should the Company's equipment fail;

        b.    details on any containment or diversionary structures designed to prevent

spills into waters or to protect fish, wildlife, and public and private property in order to maintain compliance with all applicable rules and statutes;

        c.    a spill contingency plan (SCP) and standard operating procedures (SOPs) for other spill prevention and containment methods necessary to prevent oil spills from reaching the waters of the state;

        d.    a written commitment of manpower, equipment, and materials needed to control and remove any harmful quantity of oil discharged;

        e.    an employee training program, as part of the above commitment, which covers both preventative and contingency SOPs for spills, including a schedule for implementing the program;

        f.    a written statement and certification signed and dated by the Respondent's authorized representative that Respondent is aware of and in compliance with all applicable state rules pertaining to the safe handling and transport of oil.

    The SPCC is subject to the approval of IDEM. Upon reasonable notification by IDEM, Respondent will timely modify the SPCC as necessary to correct the inadequacies of the SPCC. IDEM approval of the SPCC shall not relieve the Respondent of its continuing obligation to comply with all applicable rules and statutes.

    Upon receipt of IDEM approval of the SPCC plan, Respondent shall implement the plan for all its operations within the State of Indiana. The Respondent shall operate under this plan thereafter, and shall modify the plan from time-to-time as needed.

2.    All submittals required by this Order, unless notified otherwise in writing, shall be sent to:

            Paul Cluxton, Case Manager
            Office of Enforcement
            Indiana Department of Environmental Management
            100 N. Senate Avenue
            P.O. Box 6015
            Indianapolis, Indiana 46206-6015.

3. The Respondent shall pay a civil penalty of Twenty Three Thousand Nine Hundred Fifty Dollars ($23,950) for violation of the spill rule (327 IAC 2-6) cited in the above Findings. This penalty shall be remitted to the Department of Environmental Management within thirty (30) days. Checks shall be made payable to the Environmental Management Special Fund, with the Cause Number indicated on the check and mailed to:

        Cashier, IDEM
        100 N. Senate Avenue
        P. O. Box 7060
        Indianapolis, IN 46206-7060.

4.    In the event that the civil penalty required by Paragraph 3 is not paid within thirty days, 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.

5.    The Respondent shall pay an additional civil penalty of Fifty Dollars ($50) per day for each day of noncompliance with the time limits set forth in this Order.

6.    This Order shall apply to and be binding upon the Respondent, its officers, directors, principals, agents, successors, subsidiaries, and assigns.

7.    The Respondent shall provide a copy of this 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 Order comply with the terms of this Order.

EFFECTIVE DATE OF ORDER

Pursuant to IC 13-30-3-5, this Order takes effect twenty (20) days following receipt unless you request review of this Order, before the twentieth day after receipt, by filing a written request for review with the Office of Environmental Adjudication and serving a copy of the request for review upon the Commissioner of the Indiana Department of Environmental Management. Pursuant to IC 4-21.5-3-7, you may request that the Office of Environmental Adjudication conduct a hearing to review this Order, under IC 4-21.5, in its entirety, or you may limit your request for review to specific findings of fact and/or orders contained in this Order.

Requests for review must be submitted to the Office of Environmental Adjudication and the Commissioner of the Indiana Department of Environmental Management at the following addresses:

Director                        Commissioner
Office of Environmental Adjudication        Department of Environmental Management
ISTA Building, Suite 618                IGCN, 100 North Senate
150 West Market Street                P. O. Box 6015
Indianapolis, IN 46204                Indianapolis, IN 46206-6015

Failure to properly submit a request for review, before the twentieth day following receipt of this Order of the Commissioner, waives your right to administrative review of this Order

pursuant to IC 4-21.5-3-7 and your right to a judicial review of the Order pursuant to IC 4-21.5- 5-4. The request for review must contain the following information:

A statement of facts demonstrating that:

        (a)    You are the person to whom this Order is specifically directed;
        (b)    You are aggrieved or adversely affected by this Order; or
        (c)    You are entitled to review by law.

The following information should be included in order to expedite review by the Office of Environmental Adjudication:

Identification of the cause number of this Order, the specific findings of fact and/or orders to be reviewed, and the legal basis for your challenge to this Order. In addition, your request for review should include the name, address, and phone number of the entity or individual to whom this Order is specifically directed. If you have procedural or scheduling questions regarding your request for review, you may contact the Office of Environmental Adjudication at 317/232-8591.

Dated at Indianapolis, Indiana this _____ day of _____________________, 1997.

                         Signed on August 20, 1997
                            John M. Hamilton
                            Commissioner

cc: Spencer County Health Department

Converted by Andrew Scriven