STATE OF INDIANA		)		BEFORE THE INDIANA DEPARTMENT
		)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION		)
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
	Complainant,				)
					)
	v.				)	Case No. 1999-3496-A
					)	Old Cause No. A-4511
Progress Rail Services					)
					)
					)
	Respondent.				)

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 Indiana created by IC 13-13-1-1.

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 Hammond, Indiana after July 30, 1998.

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
1600 Progress Drive	One North Capitol Avenue
Albertville, Alabama 35950	Indianapolis, Indiana 46204

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

100 N. Senate Avenue

Indianapolis, IN 46204-2251

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

100 N. Senate Avenue

Indianapolis, IN 46204-2251

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:
By: __________________________	By: _____________________
David P. McIver
Chief, Air Section
Office of Enforcement	Printed: __________________
	Title: ____________________
Date: _______________________	Date: ____________________
COUNSEL FOR COMPLAINANT:	COUNSEL FOR RESPONDENT:
Department of Environmental Management
By: ___________________________	By: ________________________
Office of Legal Counsel
Date: ______________________	Date: ________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS	_____	DAY OF		_____________________	, 200	___	.
			For The Commissioner:
			Signed on January 30, 2006
			Matthew T. Klein
			Assistant Commissioner
			of Compliance and Enforcement