UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In accordance with Section 311(b)(6)(c) of the Clean Water Act (“CWA”), 33 U.S.C. § 1321(b)(6)(C), and 40 C.F.R. § 22.45 of the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits (“Consolidated Rules”), the Environmental Protection Agency (“EPA”) is providing notice of a proposed Administrative Penalty Assessment against BP Products North America Inc., a national business engaged in the manufacture and storage of oil products, for alleged violations at the Respondent’s oil storage facility located in 15393 Old Highway Road, Peosta, Iowa 52068 (“Facility,” also known as the “Dubuque Facility”).
Under Section 311(b)(6)(B)(ii) of the CWA, 33 U.S.C. § 1321(b)(6)(B)(ii), the EPA is authorized to issue orders assessing civil penalties for various violations of the CWA. The EPA may issue such orders after filing a Complaint commencing either a Class I or Class II penalty proceeding. The EPA provides notice of the proposed assessment of a Class II civil penalty pursuant to 311(b)(6)(B)(ii) of the Clean Water Act, 33 U.S.C. § 1321(b)(6)(B)(ii). Class II proceedings are conducted under EPA’s Consolidated Rules, 40 C.F.R. Part 22.
In this case, the EPA alleges that Respondent violated Sections 311(b)(3) and 311(j) of the CWA, 33 U.S.C. §§ 1321(b)(3) and 1321(j), and regulations promulgated thereunder. On or about August 6, 2018, a spill of No. 2 diesel fuel oil was discovered from a 2,500,000-gallon storage tank (Tank 12) at the Facility that discharged from the Facility by penetrating through the secondary containment of Tank 12, and then flowing to a stormwater outfall into the adjacent South Fork Branch 2, a water of the United States, within the meaning of Section 502(7) of the CWA, 33 U.S.C. § 1362(7), and 40 C.F.R. § 112.2 (the “August 6, 2018 spill”). The EPA alleges that the discharge of oil into the South Fork Branch 2 was a violation of the prohibition against discharges of oil into waters of the United States, as set forth at Section 311(b)(3) of the CWA. The EPA also alleges that the failure of the Facility’s containment was a violation of Section 311(j) of the CWA, and the requirement of 40 C.F.R. 112.8(c)(2) for secondary containment to be sufficiently impervious to contain a spill. Respondent has reached agreement with EPA on the terms of a proposed Consent Agreement/Final Order which would resolve this matter. Under the proposed Consent Agreement/Final Order, Respondent will pay a civil penalty of $71,400. Respondent and EPA have also entered a separate administrative compliance order on consent that requires Respondent to investigate and upgrade the Facility’s secondary containment (Docket No. CWA-07-2019-0247). Final approval of the proposed Consent Agreement/Final Order is subject to the requirements of 40 C.F.R. § 22.45.
The EPA will receive written comments on the proposed Administrative Penalty Assessment for a period of thirty (30) days from the date of publication of this notice. All such comments shall be submitted to the Regional Hearing Clerk at the address provided below. The procedures by which the public may submit written comments on a proposed Class II order or participate in a Class II proceeding, and the procedures by which a respondent may request a hearing, are set forth in the Consolidated Rules. Persons wishing to obtain additional information on the proceeding, receive a copy of EPA’s Consolidated Rules, review the proposed Consent Agreement/Final Order, comment upon the proposed penalty assessment, or otherwise participate in the proceeding should contact Regional Hearing Clerk, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, Kansas 66219. Please reference Docket No. CWA-07-2019-0246. For Technical questions contact David Hensley, Enforcement and Compliance Assurance Division, at firstname.lastname@example.org, at the above mailing address or 913-551-7768. Persons with legal questions may contact Howard Bunch, Office of Regional Counsel, at email@example.com at the above mailing address or 913-551-7879. In order to provide opportunity for public comment, EPA will issue no final order assessing a penalty in this proceeding prior to forty (40) days from the date of this notice.
Enforcement and Compliance Assurance Division