BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R~.~VED
CLERK’S OFFICE
PEOPLE
OF THE STATE OF ILLINOIS,
)
p~
2005
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
sT~iEOFILL~NOIS
Pdt~ution
Contro’ Board
Complainant,
PCB No.
05-148
v.
)
(Enforcement
-
Air)
CONCRETE SPECIALTIES CO.,
an
Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on July
1,
2005,
we filed with the
Illinois Pollution Control Board a
“Stipulation and Proposal for
Settlement” and “Relief from the Hearing Requirement”,
a
true
and correct copy of which
is attached and hereby served upon
you.
Respectfully submitted,
LISA MPJJIGAN
Attorney General
State of Illinois
BY:
_______
ITCHELL L.
OHEN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago,
Illinois
60601
(312)
814-5282
SERVICE LIST
Maria
S. Pugliese
Rick Saines
Baker & McKenzie
One Prudential Plaza,
Suite
3500
130 East Randolph Drive
Chicago,
Illinois 60601
BEFORE THE ILLINOIS POLLUTION CONTROL
BOR~T~~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
~
by LISA MADIGAN, Attorney
)
~1uL
u
1
2005
General of the State of Illinois,
)
STATEOFILLJNOIS
PoUution
Control
Board
Complainant,
PCB No.
05-148
v.
)
(Enforcement
-
Air)
CONCRETE SPECIALTIES CO.,
an
Illinois corporation,
Respondent.
MOTION FOR
RELIEF
FROM HEARING REQUIREMENT
NOW COMES Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois,
and
pursuant to Section 31(c) (2)
of the Illinois Environmental
Protection Act
(T1Actfl)
,
415 ILCS 5/31(c) (2)
(2002),
moves that
the Illinois Pollution Control Board
(“Board”)
grant the parties
in the above-captioned matter relief from the hearing
requirement imposed by Section 31(c) (1)
of the Act,
415 ILCS
5/31(c) (1)
(2002).
In support of this motion,
Complainant
states as follows:
1.
The Complaint in this matter alleges violation of the
Sections 9(a)
and
(b) and 39.5(6) (b)
of the Act,
415 ILCS 5/9
(a) and
(b)
and 39.5(6) (b) (2002), and Sections 201.142,
201.143,
201.302(a),
203.201, and 254.132(a)
of the Board Regulations,
35
Ill. Adm.
Code 201.142,,
201.143,
201.302(a),
203.201, and
254.132(a).
2.
Complainant is filing this Motion and a Stipulation
and Proposal for Settlement with the Board.
3.
The parties have reached agreement on all outstanding
issues
in this matter.
4.
This agreement
is presented to the Board in a
Stipulation and Proposal for Settlement filed this same date.
5.
All parties agree that a hearing on the Stipulation
and Proposal for Settlement
is not necessary, and respectfully
request relief from such a hearing as allowed by Section
31(c)
(2)
of the Act,
415 ILCS 5/31(c) (2)
(2002).
WHEREFORE,
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
hereby requests that the Board grant this motion for relief from
the hearing requirement set forth in Section 31(c) (1)
of the
Act,
415 ILCS 5/31(c)
(1)
(2002)
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
_______
M TCHELL L. C HEN
Assistant Attorney General
•
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago, Illinois
60601
•
•
(312)
814-5282
DATE: July
1,
2005
RE’~.
WED
CLERK’5 OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
012005
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney
)
PoIIu~onControl Board
General of the State of Illinois,
Complainant,
v.
)
PCB No.
05-148
(Enforcement—Air)
CONCRETE SPECIALTIES CO.,
an
Illinois corporation,
Respondent.
STIPULATION AND
PROPOSAL FOR
SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General of the State of Illinois,
the Illinois
Environmental Protection Agency (“Illinois EPA”),
and
Respondent, CONCRETE SPECIALTIES CO.
(“Concrete Specialties”),
an Illinois corporation,
have agreed to the making of this
Stipulation and submit it to the Illinois Pollution Control
Board
(“Board”)
for approval.
The parties agree that the
statement of facts contained herein represents
a fair summary of
the evidence and testimony which would be introduced by the
parties
if a hearing were held.
The parties further stipulate
that this statement of facts is made and agreed upon for
purposes of settlement only and that neither the fact that
a
party has entered into this Stipulation,
nor any of the facts
stipulated herein,
shall be introduced into evidence in any
1
other proceeding regarding the claims asserted in the Complaint
except as otherwise provided herein.
If the Board approves and
enters this Stipulation,
Respondent agrees to be bound by the
Stipulation and not to contest its validity in any subsequent
proceeding to implement or enforce its terms.
I.
JURI
SDICTION
The Board has jurisdiction of the subject matter herein and
of the parties consenting hereto pursuant to the Illinois
Environmental Protection Act
(“Act”), 415 ILCS 5/1
et
seq.
(2002)
II.
AUTHORIZATION
• The undersigned representatives for each party certify that
they are fully authorized by the party whom they represent to
enter into the terms and conditions of this Stipulation and to
legally bind them to
it.
III.
STATEMENT OF FACTS
A.
Parties
1.
On February 1,
2005,
a Complaint was filed on behalf
of the People of the State of Illinois by Lisa Madigan, Attorney
2
General of the State of Illinois,
on her own motion and upon the
request of the Illinois EPA, pursuant to Section 31 of the Act,
415 ILCS 5/31
(2002),
against the Respondent.
2.
The Illinois EPA is
an administrative agency of the
State of Illinois,
created pursuant to Section
4 of the Act,
415
ILCS 5/4
(2002)
3.
At all times relevant to the complaint,
Respondent was
and is an Illinois corporation that
is authorized to transact
business in the State of Illinois.
B.
Site Description
1.
At all times relevant to the Complaint,
Respondent,
Concrete Specialties,
owned and operated a concrete product
manufacturing facility located at 1375 Gifford Road,
Elgin,
Cook
County,
Illinois
(“facility”)
2.
Respondent’s facility uses mold release compounds that
are blends of water,
surfactants,
and aliphatic hydrocarbons.
The compounds are used to prevent adherence of concrete to parts
of the mold during curing/drying.
Volatile organic material
(“VOM”)
emissions result from evaporation of available
hydrocarbons contained in the compounds.
3.
Respondent manufactures concrete manholes,
pipe,
and
similar products at its facility and has done
so since
3
approximately 1997,
the exact date better known to Respondent.
Respondent’s storage piles,
storage bins,
cement bins,
conveyors,
mixers, mold release compound, and gas steamer at the
facility are “emission source(s)” and “new emission source(s)”
as those terms are defined in 35 Ill. Adm. Code 201.102.
4.
Beginning in April
1996 and continuing to
a date
better known to Respondent, Respondent commenced and completed
construction
of the emissions sources
at its facility and
operated said emission sources without first applying for and
obtaining a construction permit(s)
and operating permit(s)
from
the Illinois EPA.
5.
Respondent began operation of emissions sources
at the
Site in 1997, and was required to file
a Clean Air Act Permit
Program
(CAAPP)
application or an application for a Federally
Enforceable State Operating Permit
(FESOP)
seeking an exclusion
from the CAAPP permit no later than
1.2 months after beginning
operation of the source.
However, Respondent did not submit a
FESOP application to Illinois EPA until December
9,
2003.
The
FESOP is currently under review by the Illinois EPA.
6.
In April 1996, Respondent commenced construction of
emission sources at the Site,
a new major source in the Chicago
nonattainment area,
without first having demonstrated compliance
4
with the Board’s new source review regulations.
7.
Respondent failed to timely submit complete and
accurate Annual Emissions Reports
(“AER5”)
to the Illinois EPA
for calendar years
1997 through 2002.
Respondent did not submit
AERs containing the required information until December
9,
2003.
C.
Allegations of Non-Compliance
1.
Complainant contends that the Respondent has violated
the following provisions
of the Act and Board Regulations:
Count
I: Construction of Emission Sources Without a
Permit
Violation of Section
9(b)
of the Act,
415 ILCS
5/9(b) (2002)
and Section 201.142 of the Board
Regulations,
35
Ill.
Adm. Code 201.142(2002).
Count
II: Operation of Emissions Sources Without
a
Permit
Violation of Section
9
(b)
of
the Act,
415 ILCS 5/9
(b)
(2002) and Section 201.143
of the
Board Regulations,
35 Iii.
Adm.
Code 201.143(2002).
Count
III: Operating
a Major Stationary Source Without
a CAAPP Permit
Violation of Section 39.5(6) (b)
of the Act,
415 ILCS
5/39.5(6) (b)
(2002).
Count
IV: Violation of New Source Review
Violation of Section
9(a)
of the Act,
415 ILCS
9(a) (2002) and Section 203.201 of the Board
Regulations,
35 Ill. Adm.
Code 203.201(2002).
Count V: Failure to Timely Submit Complete and
Accurate Annual Emission Reports
Violation of Section
9(a)
of the Act,
415 ILCS
9(a) (2002)and Sections 201.302(a)
and 254.132(a)
of
5
the Board Regulations,
35
Ill. Adm.
Code 201.302 (a)
and 254.132 (a) (2002).
D.
Admission
of Violations
The Respondent neither admits nor denies the violation(s)
alleged in the Complaint filed in this matter and referenced
within Section III.C herein.
E.
Compliance Activities
to Date
The Respondent submitted a FESOP permit application to the
Illinois EPA on December
9,
2003,
and submitted completed AER5
for 1997-2002 on December
9,
2003.
The Respondent has submitted
all necessary reports and records since that date,
including the
AER for 2003,
which was submitted before May
1,
2004.
IV.
IMPACT ON THE PUBLIC RESULTING FROM NONCOMPLIANCE
Section 33(c)
of the Act,
415 ILOS
5/33 (c) (2000), provides
as follows:
In making its orders and determinations,
the
Board shall take into consideration all the facts
and circumstances bearing upon the reasonableness
of the emissions,
discharges,
or deposits
involved including,
but not limited
to:
1.
the character and degree of injury to,
or interference with the protection of the
health,
general welfare and physical
property of the people;
2.
the social and economic value of the
pollution source;
6
3.
the suitability or unsuitability of the
pollution source to the area in which it is
located,
including the question of priority
of location in the area involved;
4.
the technical practicability and
economic reasonableness of reducing or
eliminating the emissions,
discharges
or
deposits resulting from such pollution
source;
and
5.
any subsequent compliance.
In response to these factors,
the parties
state:
1.
The impact to the public resulting from the alleged
violations was that harm to human health and the environment was
threatened,
and the Illinois EPA’s information gathering
responsibilities were hindered,
by Concrete Specialties’s
unpermitted construction and operation.
2.
The parties agree that Concrete Specialities’
facility
is of social and economic benefit.
3.
When operating in compliance with the Act and Board
regulations,
the facility is suitable to the area in which it is
located.
4.
Complying with the requirements of the Act and the
Board Regulations is both technically practicable and
economically reasonable.
5.
Concrete Specialties did subsequently apply for a
7
FESOP
from the Illinois EPA.
V.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h)
of the Act,
415 ILCS 5/42(h) (2000), provides
as fOllows:
In determining the appropriate civil penalty
to be imposed under
.
.
.
this Section,
the Board
is authorized to consider any matters of record
in mitigation or aggravation of penalty,
including but not limited to the following
factors:
1.
the duration and gravity of
the violation;
2.
the presence or absence
of due
diligence on the part of the violator in
attempting to comply with requirements
of
this Act and regulations thereunder or to
secure relief therefrom as provided by this
Act;
3.
any economic benefits accrued by the
violator because of delay in compliance with
requirements;
4.
the amount of monetary penalty which
will serve to deter further violations by
the violator and to otherwise aid in
enhancing voluntary compliance with this Act
by the violator and other persons similarly
subject to the Act;
5.
the number, proximity in time,
and
gravity of previously adjudicated violations
of this Act by the violator;
6.
Whether the respondent voluntarily
8
self—disclosed,
in accordance with
subsection
(i)
of this Section, the non-
compliance to the Agency;
and
7.
Whether the respondent has agreed to
undertake
a “supplemental environmental
project,’1 which means
an environmentally
beneficial project
that, a respondent agrees
to undertake in settlement of an enforcement
action brought under this Act, but which the
respondent is not otherwise legally required
to perform.
In response to these
factors, the parties state:
1.
The duration of the violations occurred continuously
for a period of at least seven years beginning in April
1996 and
continuing
to 2004.
2.
Concrete Specialties has shown diligence in responding
to the Illinois EPA’s notice of violations and recommendations.
3.
Concrete Specialties has received an economic benefit
in the amount of $600.00,
representing air pollution site fees
it would have paid had it timely obtained the required permits.
4.
Complainant has determined,
in this instance,
that
a
penalty of Thirty Two Thousand Five Hundred Dollars
($32,500.00)
will serve to deter further violations and aid in future
voluntary compliance with the Act and Board regulations.
5.
Respondent has no previously adjudicated violations of
the Act.
6.
On its own initiative, Respondent retained outside
9
consultants to review the status of its environmental permits
and thereby became aware that it did not hold
a required
operating permit from the Illinois EPA.
Thereupon,
Respondent
applied for the necessary permit on December
9,
2003.
In
response to such application,
the Illinois EPA advised
Respondent that it was
in violation of the Act and its
regulations for failure to hold such permit,
and further for
other violations of the Act and its regulations.
7.
No supplemental environmental project has been
proposed by Respondent.
VI.
APPLICABILITY
A.
This Stipulation
shall, apply to and be binding upon the
Complainant and the Respondent,
and any officer,
director,
agent,
or employee of the Respondent,
as well as any successors
or assigns
of the Respondent.
The Respondent shall not raise as
a defense to any enforcement action taken pursuant to this
Stipulation the failure of any of its officers, directors,
agents,
or employees to take such actions as shall be required
to comply with the provisions of this Stipulation.
B.
No change in ownership, corporate status or operator of the
facility shall
in
any, way alter the responsibilities
of the
10
Respondent under this Stipulation.
In the event of any
conveyance of title,
easement or other interest in the facility,
the Respondent shall continue to be bound by and remain liable
for performance of all obligations under this
Stipulation.
VII.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of
the Respondent to comply with any other federal,
state or
local
laws or regulations,
including but not limited to the Act,
and
the Board Regulations,
35 Ill. Adm.
Code,
Subtitles A through
H.
VIII.
TERMS
OF
SETTLEMENT
A.
Penalty
1.
The Respondent shall pay a civil penalty in the sum of
Thirty Two Thousand Five Hundred Dollars
($32,500.00)
within
thirty
(30)
days from the date the Board adopts and accepts
this
Stipulation.
The Respondent. stipulates that payment has been
tendered to Respondent’s attorney of record in this matter in a
form acceptable to that attorney.
Further,
Respondent
stipulates that said attorney has been directed to make the
penalty payment
on behalf of Respondent, within thirty
(30)
days
•
11
from the date the Board adopts and accepts this Stipulation,
in
a manner prescribed below.
The penalty described in this
Stipulation shall be paid by certified check, money order or
electronic funds transfer payable to the Illinois EPA,
with
Thirty One Thousand Nine Hundred Dollars
($31,900.00)
designated
to the Illinois Environmental Protection Trust Fund and with Six
Hundred Dollars
($600.00)
designated to the Environmental
Inspection And Permit Fund,
both payments submitted
to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794—9276
The ‘name and number of the case and Respondent’s Federal
Employer Identification Number
(FEIN),
99-9003233,
shall appear
on the check.
A copy of the certified check, money order or
record of electronic
funds transfer and any transmittal letter
shall be sent to:
Mitchell L. Cohen
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago,
Illinois 60601
And
Maureen Wozniak
Assistant Counsel
Illinois Environmental Protection Agency
12
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,
Illinois 62794—9276
2.
Pursuant to Section 42(g)
of the Act,
415 ILCS 5/42(g)
(2002),
interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate allowable under
Section 1003(a)
of the Illinois Income Tax Act,
35 ILCS 5/1003
(2002)
.
Interest on any unpaid payment shall begin to accrue
from the date the payment
is due and continue to accrue until
the date payment is received.
When partial payment(s)
are made,
such partial payment shall be first applied to any interest on
unpaid payment then due and owing.
All interest on payment owed
shall be paid by certified check, money order or electronic
‘funds transfer, payable to the Illinois EPA, designated to the
Illinois Environmental Protection Trust Fund and delivered to
the address and in the manner described above.
3.
For purposes of payment and collection,
Respondent may
be reached at the following address:
Maria
S.
Pugliese
Baker
& McKenzie
One Prudential Plaza,
Suite 3500
130 East Randolph Drive
Chicago,
Illinois 60601
And
Concrete Specialties Company
13
James Nondorf,
President
1375 Gifford Road
Elgin,
Illinois 60120
4.
In the event of default of this Section VIII.A,
the
Complainant shall be entitled to all available relief including,
but not limited to,
reasonable costs
of collection and
reasonable attorney’s fees.
B.
Compliance Plan
Respondents shall operate the facility with all the
appropriate permits upon issuance by the Illinois EPA of their
FESOP, and shall at all times comply with the terms and
conditions therein.
C.
Future Use
Notwithstanding any other language in this Stipulation to
the contrary; and in consideration of the mutual promises and
conditions contained in the Stipulation,
including the release
from liability contained in Section VIII
F below, Respondent
hereby agrees that this Stipulation may be used against the
Respondent in any subsequent enforcement action or permit
proceeding as proof of
a past adjudication of a violation of the
Act and the Board Regulations promulgated thereunder,
for
14
purposes of Section 39(a)
and
(i)
and/or
42
(h)
of the Act,
414
ILCS
5/39(a)
and
(i)
and/or 5/42
(h) (2002)
.
Further, Respondent
agrees to waive,
in any enforcement action,
any right to contest
whether those alleged violations were adjudicated.
D.
Right of Entry
In addition to any other authority,
the Illinois EPA,
its
employees and representatives,
and the Attorney General,
her
agents and representatives,
shall have the right of entry into
and upon the Respondent’s facility which is the subject of this
Stipulation,
at all reasonable times for the purposes of
carrying out inspections.
In conducting such inspections,
the
Illinois EPA,
its employees and representatives,
and the
Attorney General, her employees and representatives may take
photographs,
samples, and collect information,
as they deem
necessary.
E.
Cease and Desist
The Respondent shall cease and desist from future
violations
of the Act and Board Regulations,
including but not
limited to those sections of the Act and Board regulations that
were the subject matter of the Complaint as outlined in Section
15
iII.C.
of this Stipulation.
F.
Release from Liability
In consideration of the Respondent’s payment of a
$32,500.00 penalty and any specified costs and accrued interest,
and to cease and desist as contained in Section VIII E above,
the Complainant releases, waives and discharges the Respondent
from any further liability or penalties for violations of the
Act and Board Regulations that were the subject matter of the
Notice of Violations and the Complaint herein.
The release set
forth above does not extend to any matters other than those
expressly specified in the Notice of Violation dated September
15,
2003,
and Complainant’s Complaint filed on February
1,
2005.
The Complainant reserves,
and this Stipulation is without
prejudice
to,
all rights of the State of Illinois against the
Respondent with respect to all other matters,
including but not
limited to, the following:
a.
criminal liability;
b.
liability for future violation of state,
federal,
local, and common laws and/or regulations;
c.
liability for natural resources damage arising out of
the alleged violations; and
16
d.
liability or claims based on the Respondent’s failure
to satisfy the requirements of this Stipulation Agreement.
Nothing in this Stipulation is intended as a waiver,
discharge,
release,
or covenant not to sue for any claim or
cause of action,
administrative or judicial,
civil or criminal,
past or future,
in law or in equity,
which the State of Illinois
or the Illinois EPA may have against any person,
as defined by
Section 3.26 of the Act,
415 ILCS 5/3.26
(2002),
or entity other
than the Respondent.
G.
Retention of Jurisdiction
The Board shall retain jurisdiction
of this matter for the
purpose of interpreting and enforcing the terms and conditions
of the Stipulation.
H.
Enforcement of Stipulation
1.
Upon the entry of this Stipulation,
any party hereto,
upon motion, may reinstate these proceedings solely for the
purpose of enforcing the terms and conditions
of this
Stipulation.
This Stipulation
is
a binding and enforceable
order of the Board and may be enforced as such through any and
all available means.
17
2.
Respondent agrees that notice of any subsequent
proceeding to enforce this Stipulation may be made by mail and
waives any requirement of service of process.
WHEREFORE,
the parties, by their representatives,
enter
into this Stipulation and submit it to the Board that it may be
approved and entered.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW
J.
DUNN,
Chief
ILLINOIS ENVIRONMENTAL
Environmental Enforcement/
PROTECTION AGENCY
Asbestos Litigation Division
BY:
____________________
BY:
___________________
ROSEMARIE CAZEAU,
Chief
William Ingersoll
Environmental Bureau
Acting Chief Legal Counsel
Assistant Attorney General
DATE:
_____________________
DATE:
FOR THE RESPONDENT:
CO.
~c~k
DATE:
________________
18
2.
Respondent agrees that notice of any subsequent
proceeding to enforce this Stipulation may be made by mail and
waives any requirement of service of’process.
WHEREFORE,
the parties, by their representatives,
enter
into this Stipulation and submit it to the Board that it maybe
approved and entered.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW J.
DUI~JN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
IE CAZEAU,
Chie:
Environmental Bureau
Assistant Attorney General
DATE:
______________
FOR THE RESPONDENT:
CONCRETE SPECIALTIES CO.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
/
,
William D.
Inge
oll
Acting Chief Legal Counsel
DATE:
Z
/~
22~7S’
BY:
DATE:
Its
18
CERTIFICATE OF SERVICE
I, MITCHELL COHEN,
an Assistant Attorney General, certify
that on the l~day of July,
2005,
I caused to be served by First
Class Mail the foregoing
“Stipulation and Proposal for
Settlement”
and “Relief from the
Hearing Requirement” to the
parties named on the attached service
list, ‘by depositing same
in postage prepaid envelopes with the United States Postal
Service located at
100 West Randolph Street,
Chicago,
Illinois
60601.
2/1ü~W’7
~
M TCHELL
L.
COHEN
