STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2010-19602-H
					)
FREIGHTcAR RAIL SERVICES, LLC,					)
					)
Respondent.					)

AGREED ORDER

Complainant and 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 (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Freightcar Rail Services LLC, (“Respondent”), which owns/operates the company with United States Environmental Protection Agency (EPA) ID No. IND 097 316 244, located at 515 East 4^th Street, in Clinton, Vermillion County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) to:

Robert Marshall, Vice President	CT Corporation System, Registered Agent
Freightcar Rail Services, LLC	Freightcar Rail Services, LLC
PO Box 1548	251 E. Ohio Street Suite 1100
Grand Island, Nebraska 68802	Indianapolis, IN 46204

5. Respondent most recently notified EPA of Small Quantity Generator activities on February 22, 2010. Respondent repairs railcars that haul coal and grain.

6. 329 IAC 3.1 incorporates certain federal hazardous waste management requirements found in 40 CFR Parts 260 through 270, and Part 273 including these identified below.

7. During an investigation including an inspection on November 16, 2010 conducted by a representative of IDEM, the following violations were found:

a. Pursuant to 329 IAC 3.1-1-10, every hazardous waste generator, transporter, or owner or operator of a hazardous waste facility, must notify the Commissioner of its hazardous waste activity on the approved forms.

As noted during the inspection, Respondent failed to notify the Commissioner of hazardous waste storage activities. Subsequent to the inspection, Respondent provided documentation that the stored drums had been left on-site from a previous owner.

b. Pursuant to 40 CFR 270.1(c), a permit is required for the treatment, storage and disposal of any hazardous waste as identified or listed in 40 CFR Part 261.

As noted during the inspection, Respondent stored hazardous waste identified or listed in 40 CFR Part 261 without a permit. Subsequent to the inspection, Respondent provided documentation that the stored drums had been left on-site from a previous owner.

c. Pursuant to IC 13-30-2-1(10), a person may not commence or engage in the operation of a hazardous waste facility without having first obtained a permit from the department.

As noted during the inspection, Respondent operated a hazardous waste facility without having first obtained a permit from the department. Subsequent to the inspection, Respondent provided documentation that the stored drums had been left on-site from a previous owner.

d. Pursuant to 40 CFR 262.34(f), a generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month and who accumulates hazardous waste for more than 180 days is an operator of a storage facility and is subject to the requirements of 40 CFR Part 264 and the permit requirements of 40 CFR Part 270.

As noted during the inspection, Respondent stored five (5) 55-gallon drums, one (1) 30-gallon drum and three (3) 5-gallon buckets of hazardous waste on-site for greater than 180 days without complying with 40 CFR Part 264 and 40 CFR Part 270. The drums and buckets were stored in the hazardous waste storage/paint shop area.

On December 15, 2010, Respondent submitted documentation to IDEM verifying that all hazardous waste stored on-site for greater than 180 days was removed on November 11, 2010, and sent for proper disposal. Subsequent to the inspection, Respondent provided documentation that the stored drums had been left on-site from a previous owner.

e. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(2), a generator may accumulate hazardous waste on-site for 180 days or less without a permit, provided that the date when the accumulation begins is clearly marked and visible for inspection on each container.

As noted during the inspection, Respondent accumulated several drums of hazardous waste on site, without a permit, and failed to clearly mark hazardous waste containers with accumulation start dates. The drums had incomplete accumulation dates or no accumulation dates. The drums were stored in the hazardous waste storage/paint shop area.

On December 15, 2010, Respondent submitted documentation to IDEM verifying that the hazardous waste containers on-site were properly labeled.

f. Pursuant to 40 CFR 262.34(d)(4) referencing 40 CFR 262.34(a)(3),a generator may accumulate hazardous waste on-site for 180 days or less without a permit, provided that the containers are labeled or marked clearly with the words "Hazardous Waste."

As noted during the inspection, Respondent stored five (5) 55-gallon hazardous waste drums, and three (3) 5-gallon buckets of hazardous waste, on-site without a permit, and failed to mark hazardous waste containers with the words “Hazardous Waste.”

On December 15, 2010, Respondent submitted documentation to IDEM verifying that the hazardous waste containers on-site were labeled correctly.

g. Pursuant to 40 CFR 40 CFR 262.34(d)(4) referencing 40 CFR 265.35, a generator must maintain adequate aisle space to allow the unobstructed movement of personnel, fire protection, spill control, and decontamination equipment.

As noted during the inspection, Respondent failed to provide the required aisle space in the hazardous waste storage/paint shop area.

On December 15, 2010, Respondent submitted documentation to IDEM verifying that aisle space was provided.

8. 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 Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Upon the Effective Date, Respondent shall ensure that the facility does not operate as a hazardous waste storage facility without complying with the requirements of 40 CFR 264 and the permit requirements of 40 CFR 270.

3. On June 14, 2011, Respondent submitted documentation that a pad decontamination had been conducted on the drum storage pad. Within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall submit documentation, including sample results, that the decontamination has been completed to IDEM for review. Analytical results submitted to IDEM for review shall include signed chain-of-custody sheets, sampling dates, analysis dates, analytical methods used, MCLs, EQLs and quality control results. The quality assurance/quality control (QA/QC) results shall include initial and continuing calibration results, blank results, matrix duplicates, and matrix spike/matrix spike duplicate results.

4. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Idelia Walker-Glover, Enforcement Case Manager

Office of Land Quality – Mail Code 60-02L

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

5. Respondent is assessed a civil penalty of Five Thousand Seven Hundred Dollars ($5,700). Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date. In the event that the civil penalty is not paid within thirty (30) days of the Effective Date, 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.

6. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
3	$500 per day/week or part thereof

7. Stipulated penalties shall be due and payable within thirty (30) days after Respondent receives written notice that Complainant has determined a stipulated penalty is due. Assessment and payment of stipulated penalties shall not preclude Complainant from seeking any additional relief against Respondent for violation of this Agreed Order. In lieu of any of the stipulated penalties set out above, Complainant may seek any other remedies or sanctions available by virtue of Respondent’s violation of this Agreed Order or Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

8. 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 – Mail Code 50-10C

100 North Senate Avenue

Indianapolis, IN 46204-2251

9. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

10. 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.

11. 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.

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 Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable or any applicable Federal or State law or regulation.

13. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s 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 Respondent may incur as a result of Respondent’s 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 same violations specified in the NOV.

15. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the 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 Respondent may incur as a result of such communications with the EPA or any other agency or entity.

16. 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
By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________
Date: __________________				Date: _______________________
COUNSEL FOR COMPLAINANT:				COUNSEL FOR RESPONDENT:
For the Department of Environmental Management
By: ________________________				By: ________________________
	Deputy Attorney General
Date: _______________________				Date: ______________________
APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_________	DAY OF	________________,	2011.
			For the Commissioner:
			Singed September 22, 2011
			Bruce H Palin
			Assistant Commissioner
			Office of Land Quality