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STATE
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BEFORE THE INDIANA DEPARTMENT |
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COMMISSIONER OF THE DEPARTMENT Complainant, v. PROGRESS RAIL SERVICES CORPORATION, Respondent. |
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AGREED
ORDER
Complainant
and Respondents 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 Progress Rail Services
Corporation (“Respondent”), which owns/operates the Progress Rail Services with
Plant ID No. 089-00381, located at 175 West Chicago Avenue, in East Chicago,
Lake 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”) February 13, 2013
to :
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William P. Ainsworth, President |
CT
Corporation System, Registered Agent |
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1600 Progress Drive P.O. Box 1037 |
150
W Market Street Ste 800 |
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Albertville,
Al 35950 |
Indianapolis,
In 46204 |
5.
The source is a stationary locomotive axles
and wheel sets finishing plant.
6.
On August 20, 2010, Respondent submitted an administrative
permit amendment request to IDEM pursuant to
326 IAC 2-8-10. This application was
supplemented by submittals on December 21, 2010 (“First Application
Supplement”) and June 23, 2011 (“Second Application Supplement”) collectively,
the “Administrative Permit Amendment Request”.
7.
Respondent submitted a request as part of the Administrative
Permit Revision Request to use administrative amendment procedures to allow
replacement of paint booth BPB-1 with a new paint booth identified as
TD-102. Respondent contends this
replacement constituted an insignificant activity, as defined by 326 IAC
2-7-1(21)(E) and that the uncontrolled PTE of TD-102 was less than
pre-construction permit exemption criteria listed in 326 IAC 2-1.1.3(e)(1).
8.
Respondent contends that the Administrative
Permit Amendment Request included replacement of aqueous washer 1103 with new
washer A534, and to add washer A534 to the FESOP emission limitation for VOCs
in Condition D.1.2 of the Current Permit, and to replace washer SML-1 with a
different unit with the same name but that also would be subject to the FESOP
emission limitation for VOCs in Condition D.1.2 of the Current Permit.
9.
Respondent applied for a minor permit
revision on 08/23/2010 to address the units 982, 1263, A425, TMDO, BCC1, VPI
Tanks, BPB-1, TD-102, 1103 and A534.
10.
During a permit application review conducted
by a representative of IDEM, the following violations were found:
a.
Pursuant to Condition B.18 of the Current Permit and 326 IAC 2-8-11.1
Respondent shall submit a permit revision request prior to adding additional
emission units, modifying existing emission units, or otherwise modifying a
FESOP source.
The substitution of TD-102 for BPB-1 required a modification
of the FESOP emission limit in the Current Permit. Pursuant to 326 IAC 2-8-11.1(g), the
procedures in 326 IAC 2-8-11.1(f) were required to be followed to make this
change, including the use of “significant” permit modification procedures.
Respondent removed unit BPB-1 from the facility in or about
October 2010. Respondent constructed new
emission unit TD-l 02 on February 28, 2011 without first obtaining approval of
a “significant” permit modification for the change, in violation of Condition
B.18 of the Current Permit and 326 IAC 2-8-11.1.
b.
Pursuant to Condition D.1.2 of the Current
Permit the total usage of VOCs, including coatings, dilution solvents, and
cleaning solvents, input to the surface coating spray booths 1213, 1221 and
BPB-1, dip tank AXDT, Vacuum Process Impregnation (VPI) System, and insignificant
activities surface coating spray booth TD101, paint booth TOPB, dip tank
AXDT2,and Traction Motor Drying oven TMDO, combined with the degreasing
operations MPW-1, SML-1, 865A, 1218, 1219, 1263, A378, 765, 982, and 1103 and
aqueous washers FAW, 1239, and 1292 shall be limited to less than 24.49 tons
per twelve (12) consecutive month period.
Compliance with this limit, combined with the potential to emit VOC from
other emission units at the source, shall limit the VOC from the entire source
to less than 25 tons per twelve (12) consecutive month period and render 326
IAC 2-3 (Emission Offset) and 326 IAC 2-7 (Part 70) not applicable.
Respondent exceeded the source wide potential to emit VOC
limit of less than 25 tons per twelve (12) consecutive month period by
operating new paint booth TD-102 from March 3, 2011 to November 23, 2011
without first receiving a “significant” Permit Revision to limit the emissions
from TD-102, in violation of Condition D.1.2 of the Current Permit and 326 IAC
2-7.
11.
Respondent contends that at no time has
Respondent’s total usage of VOCs exceeded 24.49 tons per twelve (12)
consecutive month period.
12.
On
08/07/2013, Respondent was issued Permit No. 089-33322-00381 which included a
determination that the Quik-Blast, Wheel Qualification Stations 1 & 2,
Farrell Turning Lathe and the Hegenscheidt Lathe units were considered trivial
activities, therefore the violations cited in the February 13, 2013 NOV
relating to the Quik-Blast, Wheel Qualification
Stations 1 & 2, Farrell Turning Lathe and the Hegenscheidt Lathe have been
dismissed.
13.
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.
Pursuant to Condition B.18 of the Current
Permit and 326 IAC 2-8-11.1, Respondent shall receive proper permits with IDEM
approval before they construct and/or operate new emission units.
3.
Within sixty (60) days of the Effective Date Respondent
shall submit a permit revision application to correct the dates of construction
listed in the Permit for the Hegenscheidt Lathe (2003), Ferrell Turning lathe
(1999); and the Wheel Qualification Stations associated with each lathe. Said
permit application shall be submitted to the following address:
Permits Branch- Mail Code 61-50 IGCN
1003
Indiana Department of Environmental
Management
100 North Senate Avenue
Indianapolis, IN 46204-2251
4.
All submittals required by this Agreed Order,
unless Respondent is notified otherwise in writing by IDEM, shall be sent to:
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Amanda Kulpa,
Compliance and Enforcement Manager Compliance and Enforcement Branch-
Mail Code 61-53 |
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Indiana Department of Environmental
Management |
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100 North Senate Avenue |
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Indianapolis, IN 46204-2251 |
5.
Respondent is assessed and agrees to pay a
civil penalty of Six Thousand Five Hundred Sixty Two dollars and Fifty Cents ($6,562.50). Said penalty amount shall be due and payable
to the Environmental Management Special Fund within thirty (30) days of the
Effective Date; the 30th day being the “Due Date”.
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:
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Paragraph |
Stipulated Penalty |
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Order
Paragraph 3 |
One
Hundred Dollars ($100.00) per week or part thereof |
7.
Stipulated penalties shall be due and payable
no later than the 30th day after Respondent receives written notice
that Complainant has determined a stipulated penalty is due; the 30th
day being the “Due Date”. Complainant
may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a
timely manner of a stipulated penalty assessment shall not waive Complainant’s
right to collect such stipulated penalty or preclude Complainant from seeking
additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated
penalties shall preclude Complainant from seeking additional relief against
Respondent for a violation of this Agreed Order; such additional relief
includes any remedies or sanctions available pursuant to 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:
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Indiana Department of Environmental
Management |
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Cashier – Mail Code 50-10C |
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100 North Senate Avenue |
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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 their status or responsibilities
under this Agreed Order.
10.
In the event that the monies due to IDEM
pursuant to this Agreed Order are not paid on or before their Due Date,
Respondent shall pay interest on the unpaid balance at the rate established by
IC 24-4.6-1. The interest shall be
computed as having accrued from the Due Date until the date that Respondent
pays any unpaid balance. Such interest
shall be payable to the Environmental Management Special Fund, and shall be
payable to IDEM in the manner specified in Paragraph 5, above.
11.
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.
12.
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.
13.
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 their obligation to comply with the
requirements of their applicable permits or any applicable Federal or State law
or regulation.
14.
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.
15.
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.
16.
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.
17.
This Agreed Order shall remain in effect
until IDEM issues a Resolution of Case letter to Respondent. IDEM shall issue a Resolution of Case letter
to Respondent after the civil penalty and any stipulated penalties or interest
owed have been paid to IDEM and Respondent has submitted the permit
modification request specified in paragraph 3 of this Order.
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TECHNICAL
RECOMMENDATION: |
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RESPONDENT: |
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Department
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Progress Rail Services Corporation |
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By: |
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By: |
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J.
Robert Simmons, Deputy Director |
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Printed: |
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Northwest
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COUNSEL
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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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,
2014. |
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For
the Commissioner |
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Signed
on March 25, 2014 |
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Keith
Baugues, Assistant Commissioner |
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Office
of Air Quality |
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Indiana
Department of Environmental Management |
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