United States of America v. BP Products North America Inc

Filing 94

OPINION AND ORDER: The Unopposed Motion to Enter Fifth Amendment to Consent Decree 91 is GRANTED. The Fifth Amendment to Consent Decree is APPROVED and will be entered separately herein. Signed by Judge Philip P Simon on 8/9/2023. (mrm)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA and
STATE OF INDIANA,
Plaintiffs,
v.
BP PRODUCTS NORTH AMERICA,
INC.,
Defendant.

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Cause No. 2:12-CV-207-PPS-APR

OPINION AND ORDER
Defendant BP Products North America operates a petroleum factory in Whiting.
In 2012, a consent decree was entered as agreed by BP Products, the United States, the
State of Indiana, and a number of environmental groups acting as intervenor-plaintiffs,
to resolve claims of violations of the Clean Air Act and Emergency Planning and
Community Right-to-Know Act at the refinery. [DE 9 at 1.] The decree has since been
modified four times. [See DE 13; DE 59; DE 84; DE 86; DE 87; DE 88.]
On July 10, the government filed a motion to enter a Fifth Amendment to the
consent decree [DE 91], which all parties agree is unopposed. The same day, the
government moved for entry of a new proposed consent decree in a related matter
addressing air pollution at the Whiting Refinery. See DE 4, United States v. BP Products
North America, Inc., No. 2:23-CV-166-PPS-JEM. The proposed consent decree in the 2023
case resolves Clean Air Act and related state law claims concerning BP Products’ alleged
violation of terms of the 2012 consent decree, as well as a variety of new violations of the

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Benzene Waste Operations NESHAP, 40 C.F.R. Part 61, Subpart FF (“BWON”) and VOC
Emissions from Petroleum Refinery Wastewater Systems, 40 C.F.R. Part 60, Subpart
QQQ (“Subpart QQQ”), with an array of injunctive measures and stipulated penalties.
As fully explained in an opinion and order concurrently entered in the 2023 case, I find
the proposed terms of this new consent decree fair, reasonable, appropriate, and
consistent with the purpose of the CAA. It will therefore be entered on the docket.
[See generally DE 4-1, Cause No. 2:23-CV-166-PPS-JEM.]
As the parties explain, the new consent decree in the 2023 case and the Fifth
Amendment to the consent decree previously entered in this case essentially work handin-hand. The proposed Fifth Amendment terminates provisions from the 2012 consent
decree related to benzene waste operations standards, so as to avoid confusion and to
ensure the more stringent and more frequent measures in the 2023 Consent Decree
control. [DE 5 at 2, Cause No. 2:23-CV-166-PPS-JEM.] The only other changes to the 2012
consent decree contemplated by the parties are nonmaterial updates to Appendix B –
first, an update to the definition of “Certified Low-Leaking Valve Packing Technology,”
to align with new technical developments; and second, a modification to the
repair/replace timeline for newly-replaced valves to permit a repair attempt prior to
repairing/replacing the same valve again. [DE 91 at 2.] The idea is that by removing
these overlapping BWON provisions in the 2012 consent decree and replacing them with
the requirements in the 2023 consent decree, the parties can “consolidate and strengthen
the BWON-related compliance measures in a single document.” Id. Because the

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provisions terminated in the Fifth Amendment to the 2012 consent decree are being
replaced by more stringent BWON-related compliance provisions in the 2023 consent
decree, I do not need to revisit my conclusion that the 2012 consent decree is “fair,
reasonable, and consistent with the Clean Air Act’s statutory purposes.” [DE 9 at 9.]
ACCORDINGLY:
The Unopposed Motion to Enter Fifth Amendment to Consent Decree [DE 91] is
GRANTED. The Fifth Amendment to Consent Decree [DE 91-1] is APPROVED and will
be entered separately herein.
SO ORDERED.
ENTERED: August 9, 2023.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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