STATE
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BEFORE
THE INDIANA DEPARTMENT
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OF ENVIRONMENTAL MANAGEMENT |
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COMMISSIONER
OF THE DEPARTMENT |
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OF ENVIRONMENTAL MANAGEMENT, |
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Complainant, |
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Case No. 1999-3496-A |
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Old Cause No. A-4511 |
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Progress Rail Services |
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Respondent. |
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AGREED ORDER
The Complainant and the 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 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 (AComplainant@) of the Indiana
Department of Environmental Management, a department of the State of
2.
Respondent
is Progress Rail Services Corporation (ARespondent@), which acquired facility ID number
089-00381, located at 175 West Chicago Avenue in East Chicago, Lake County,
Indiana (ASite@) from Viking Engineering Co., Inc.
(AViking@) on July 30, 1998 pursuant to an
asset purchase agreement, and since that time, has owned and operated the Site
as a locomotive axles and wheel sets finishing facility.� Viking operated the business at the Site
between 1986 and� July 30, 1998, and
continued its business at a location in
3.
The
Indiana Department of Environmental Management (AIDEM@) has jurisdiction over
the parties and the subject matter of this action.
4.
Pursuant
to IC 13-30-3-3, on June 26, 2000 IDEM issued a Notice of Violation (�NOV�) via
Certified Mail to:
Mr. William P. Ainsworth, President |
CT Corporation Systems |
Progress Rail Services |
Registered Agent |
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5.
A records review, was conducted for the Site by a representative
of IDEM�s Office of Air Quality (�OAQ�).� The following violations were in existence or
observed at the time of the records review:
a.
Pursuant
to 326 IAC 2-1-4, a source or facility which has allowable emissions of
twenty-five (25) tons or more per year of any regulated pollutant shall apply
for and obtain an operating permit prior to commencing operation.
This� locomotive axles and wheel sets
finishing facility began operating without first applying for and obtaining an
operating permit, a violation of 326 IAC 2-1-4.
b.
Pursuant
to 326 IAC 8-2-9, sources or facilities which coat miscellaneous metal parts
with actual volatile organic compound (VOC) emissions greater than 15 lbs/day
may not cause, allow, or permit the discharge into the atmosphere of any VOCs in excess of 3.5 lbs/gallon of coating, excluding
water, delivered to a coating applicator.
This source exceeded the regulated threshold, while using various coatings that
had VOC content ranging from 3.57 to 6.64 pounds of VOC per gallon of coating,
a violation of 326 IAC 8-2-9.
c.
Pursuant
to 326 IAC 2-7-3, no Part 70 source may operate after the time that it is
required to submit a timely and complete application except in compliance with
a Part 70 permit issued under this rule.�
A source can continue to operate without being in violation of this rule
if it submits a timely and complete application.
This source operated without submitting a timely and complete Part 70 permit
application, a violation of 326 IAC 2-7-3.
d.
Pursuant
to 326 IAC 2-7-4, a timely Part 70 application is one that is received within
twelve (12) months after the source becomes subject to the Part 70 permit
program.� For applicable sources in
existence on December 14, 1995, the deadline is December 13, 1996.� For other sources, the deadline is twelve
(12) months from the date the source first meets an applicability criterion of
section 2 of this rule.
This source failed to submit a timely Part 70 application because this source�s
Part 70 permit application was received on June 30, 1998, after the December
13, 1996 submission deadline, a violation of 326 IAC 2-7-4.
6.
Respondent submitted its Part 70 permit application on June
30, 1998.� OAQ issued a Part 70 permit
number F089-9922-00381 on October 6, 2004.
7.
In recognition of the settlement reached, Respondent 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 the Complainant or her delegate, and has been
received by the Respondent.� This Agreed
Order shall have no force or effect until the Effective Date.
2.
Effective upon the Effective Date, this Agreed Order fully
settles and compromises any and all violations of law at the source alleged in
the NOV or in this Agreed Order.� Settled
matters include, for avoidance of any doubt, any alleged failure to timely
apply for an air permit or to operate without an air permit, at any time on or
before the issuance of the Part 70 permit to Respondent on October 6,
2004.� This settlement shall survive the
expiration of this Agreed Order.
3.
Respondent shall comply with the Part 70 permit and all its
subsequent amendments and/or modifications, whenever issued.
4.
All submittals required by this Agreed Order, unless notified
otherwise in writing, shall be sent to:
Michael Stonik, Enforcement Case Manager |
Office of Enforcement���������� Mail Code: 60-02 |
Indiana Department of Environmental Management |
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5.
Respondent is assessed a civil penalty of One Hundred Five
Thousand Dollars ($105,000.00).� Said
penalty amount shall be due and payable to the Environmental Management Special
Fund in four (4) equal installments of Twenty-Six Thousand Two Hundred Fifty Dollars
($26,250.00) in accordance with the following payment plan:
a.
the first installment shall be paid within thirty (30) days
of the Effective Date of this Agreed Order;
b.
each of the three remaining installments shall be paid not
later than by the thirtieth date of the last month of each calendar quarter
subsequent to the Effective Date until the balance is paid in full.
6.
Civil and stipulated 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 |
Cashier�s Office ������ Mail
Code:� 50-10C |
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7.
In the event that the civil penalty required by Order paragraph
5 of this Agreed Order is not paid as required by the payment plan contained
herein, 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.
8.
This Agreed Order shall apply to and be binding upon the
Respondent, its successors and assigns. The Respondent's signatories to this
Agreed Order certify that they are fully authorized to execute this document
and legally bind the parties they represent.�
No change in ownership, corporate, or partnership status of the
Respondent shall in any way alter its status or responsibilities under this
Agreed Order.
9.
In the event that any terms of the 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 the Agreed Order did not contain the invalid
terms.
10.
The Respondent shall provide a copy of this Agreed 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 Agreed Order
comply with the terms of this Agreed Order.
11.
This Agreed Order shall remain in effect until Respondent
has complied with all terms and conditions of this Agreed Order.
TECHNICAL
RECOMMENDATION: |
RESPONDENT: |
Department
of Environmental Management |
Progress Rail Services: |
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By:
__________________________ |
By: _____________________ |
David P. McIver |
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Chief, Air Section |
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Office of Enforcement |
Printed:
__________________ |
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Title: ____________________ |
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Date: _______________________ |
Date: ____________________ |
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COUNSEL
FOR COMPLAINANT: |
COUNSEL
FOR RESPONDENT: |
Department
of Environmental Management |
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By:
___________________________ |
By:
________________________ |
Office of Legal Counsel |
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Date:
______________________ |
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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For The Commissioner: |
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Signed on January 30,
2006 |
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Matthew T. Klein |
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Assistant Commissioner |
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of Compliance and Enforcement |
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