VI.CONSIDERATION OF SECTION 42 (Ii) FACTORS
Ix.RIGHT OF ENTRY

RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

JAN

 1 2 2004

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

b5M~U~-

~W~4U~

POIiUT~ONCONtROL

BOARD

PCB 04-08

GREG PREY,

 individually and doing

business as KING TIRE,

Respondent.

(Enforcement)

TO:

 Mr. Greg Prey

King Tire

237

1St

 Street

LaSalle,

IL.

 61301-2302

Mr.

 Brad Halloran

Hearing Officer

100 W.

 Randolph,

 Suite 11-500

Chicago,

Il.

60601

NOTICE

 OF FILING

PLEASE TAKE NOTICE that we have

 today,

 January

12,

 2004,

 filed

with the Office of the Clerk of the Illinois Pollution Control Board

an original and nine copies of a Stipulation and Proposal for

Settlement and a Motion to Request Relief from Hearing Requirement,

copies of which are attached herewith and served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the

State

 of Illinois

BY:

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188

W.

 Randolph St.,

20th

 Fir.

Chicago,

 IL 60601

(312)

 814-1511

THIS FILING IS SUBMITTED ON RECYCLED PAPER

RECE~VED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

 rJAN 1 2 2004

PEOPLE OF THE STATE OF ILLINOIS,

)

POu.IJUON

coNmol

BOARb

Complainant,

vs.

PCB 04-08

GREG PREY,

 individually and doing

business

 as KING TIRE,

)

 (Enforcement)

Respondent.

TO:

 Mr. Greg Prey

Mr.

 Brad Halloran

King Tire

 Hearing Officer

237

1st

 Street

100

W.

 Randolph,

 Suite 11-500

LaSalle,

IL.

 61301-2302

 Chicago,

Il.

60601

MOTION TO REQUEST RELIEF

FROM HEARING REQUIREMENT

NOW COMES the Complainant,

 PEOPLE OF THE STATE OF ILLINOIS, by

LISA

MADIGAN,

Attorney General of the State of Illinois, and requests

relief from the hearing requirement in the above-captioned matter.

In

support thereof, the Complainant states as follows:

1.

 On July 14,

 2003,

 a Complaint was filed with the Pollution

Control Board

 (“Board”)

 in this matter.

 On January 12,

 2004,

a

Stipulation and Proposal for Settlement was filed with the Board.

2.

 Section 31(c) (2)

 of the Illinois Environmental Protection

Act

 (nIAct1T),

 415 ILCS 5/31(c) (2),

 effective June 26,

 2002,

 allows the

parties

 in certain enforcement cases

 to request relief from the

mandatory hearing requirement where the parties have submitted to the

Board a stipulation and proposal for settlement.

 Section 31(c) (2)

provides:

Notwithstanding the provisions of subdivision

 (1) of this

subsection

 (c), whenever a complaint has been filed on behalf of

the Agency or by.the People

 of the State

 of Illinois,

 the parties

may file with the Board a stipulation and proposal for settlement

accompanied by a request for relief from the requirement of a

hearing pursuant to subdivision

 (1).

 Unless the Board,

 in its

discretion, concludes that a hearing will be held,

 the Board

shall cause notice of the stipulation, proposal and request for

relief to be published and sent in the same manner as is required

for hearing pursuant to subdivision

(1)

 of this subsection.

The

notice shall include a statement that any person may file a

written demand for hearing within 21 days after receiving the

 notice.

 If any person files

 a timely written demand for hearing,

the Board shall deny the request for relief from a hearing and

shall hold a hearing in accordance with the provisions of

subdivision

(1)

3.

 No hearing is currently scheduled in the instant

 case.

4.

 The Complainant requests the relief conferred by Section

31(c) (2)

 of the Act.

WHEREFORE,

 the Complainant,

 PEOPLE OF THE STATE OF ILLINOIS, by

LISA

MADIGAN,

Attorney General of the State of Illinois,

 requests

relief from the requirement of

 a hearing pursuant to 415

 ILCS

5/31(c) (2),

 effective June

26,

 2002.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the

State of Illinois

By:

~

~

PAULA

BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

 20th Fl.

Chicago, Illinois

60601

(312)

 814-1511

RECE~VE~

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UAN

2004

pEOPLE OF THE STATE OF ILLINOIS,

)

POLLUTION

CONTROL BOARD

Complainant,

v.

)

 PCB 04-08

(Enforcement)

GREG PREY,

 individually and doing

business as KING TIRE,

Respondent.

STIPULATION AND PROPOSAL FOR SETTLEMENT

Complainant,

 PEOPLE OF THE STATE OF ILLINOIS, by LISA

IvIADIGAN, Attorney General of the State

 of Illinois,

 at the

request of the Illinois Environmental Protection Agency,

and

respondent,

 GREG PREY,

 an individual doing business as King Tire,

do hereby agree to this Stipulation and Proposal for Settlement

(“Stipulation”)

 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 full

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 this or any other

proceeding except to enforce the terms

 of this agreement.

Notwithstanding the previous sentence,

 this Stipulation and

Proposal for Settlement and any Illinois Pollution Control Board

(“Board”)

 order accepting same may be used in any future

-1-

enforcement action as evidence of a past adjudication of

violation of the Illinois Environmental Protection Act

 (“Act”)

for purposes of Sections 39(i)

 and 42(h)

 of the Act,

 415 ILCS

5/39(i)

 and 5/42(h) (2002)

I.

JURISDICTION

The Board has jurisdiction of the subject matter herein and

of the parties consenting hereto pursuant to the 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

proposal for Settlement and to legally bind them to it.

III.

APPLICABILITY

This Stipulation and Proposal for Settlement shall apply to

and be binding upon the Complainant and Respondent, and each of

them,

 and on any officer,

 director, agent,

 employee or servant of

Respondent,

 as well as Respondent’s successors and assigns.

The Respondent shall not raise as a defense to any enforcement

action taken pursuant to this settlement the failure of officers,

directors,

 agents,

 servants,

 or employees of respondent to take

such action as shall be required to comply with the provisionsof

-2-

this settlement.

Iv.

STATEMENT OF FACTS

A.

 Parties

1.

 The Attorney General of the State of Illinois brought

this action on her own motion,

 as well as at the request of the

Illinois

Environmental Protection Agency (“Illinois EPA”),

pursuant to the statutory authority vested in her under Section

31 of the Act, 415 ILCS 5/31

 (2002)

2.

 Illinois EPA is an agency of the State of Illinois

created pursuant to Section

 4 of the Act,

 415 ILCS 5/4

 (2002),

and is charged,

 inter alia,

 with the duty of enforcing the Act.

3.

 Respondent,

 GREG PREY,

 is an Illinois resident,

 doing

business as King Tire.

B.

 Facility Description

Respondent owns and operates a business involved in the sale

of new and used tires.

 The business

 is located at 237

18t

Street,

 LaSalle, LaSalle County, Il1inois~The facility stores

and sells new and used tires.

 Between 50 and 2400 tires new, used

and waste tires have been stored on the premises at various

•times.

 The Respondent

 is also a registered tire transporter in

the State of Illinois.

C.

 Noncompliance

Complainant has alleged the following violations of the Act

against the Respondent:

—3—

COUNT I:

 TIRE REGISTRATION VIOLATIONS, violations of Sections

55(d) (1),

 55.6(b), and 21(k)

 of the Act, 415 ILCS

5/55(d) (1),

 55.6(b), and 5/21(k) (2002);

COUNT II:

•

 TIRE STORAGE VIOLATIONS,

 violations of Sections

55(a) (4)

and

(e)

 of the Act,

 415 ILCS 5/55(a) (4) and

(e)

 (2002),

 and 35

 Ill. Adm. Code 848.202(b) (1),

 (2),

•

 (4), and

 (5);

COUNT III: TIRE TRANSPORTER VIOLATIONS, violations of Section

55(g)

 of the Act,

 415 ILCS 5/55(g) (2002),

 and 35

 Iii.

Adm.

 Code 848.601(a).

D.

 Response to allegations

Respondent admits the allegations in the complaint.

V.

IMPACT ON THE PUBLIC RESULTING FROM NONCOMPLIANCE

Section 33(c)

 of the Act,

 415 ILCS 5/33 Cc) (2002)

 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;

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

-4-

5.

 any subsequent compliance.

ANALYSIS:

The parties mutually state as follows:

1.

 Character and Degree of Injury:

The impact to the public from the alleged violations of the

Act was the threat of disease vector from the water accumulated

in the tires,

 and the risk of air pollution from possible

combustion of tires which are stored so closely together.

2.

 Social and Economic Benefit:

The parties agree that operation of Respondent’s business is

of social and economic benefit, provided it operates in

conformance with the requirements of the Act and pertinent Board

tire regulations.

3.

 Suitability to the Area:

Operation of Respondent’s business at the Site is suitable

to the area,

 provided that the

Act and its rules and regulations

for safe tire storage and registrations are followed.

4.

 Technical Practicability:

Proper registration, payment of fees,

 and safe storage of

new, used and waste tires

 is both technically practicable and

economically reasonable.

5.

 Subsequent Compliance:

Respondent

 is currently in compliance.

-5-

VI.

CONSIDERATION OF SECTION 42 (Ii)

 FACTORS

Section

42 (h)

 of the

Act,

 415 ILCS 5/42 (h) (2002)

 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; and

5.

the

 number,

 proximity

in

 time,

and

 gravity

of

previously

 adjudicated violations

of

 this

 Act by

the violator.

•

1.

 Duration and Gravity of the Violation:

Complainant has alleged that the failure to register and pay

the fees occurred from January to October of

 2001.

 The tire

storage violations and tire transporter violation occurred on

October

5,

 2001 and other unknown dates.

 Since other dates are

unknown,

 the duration is estimated at less than one month for the

-6-

storage violations.

2.

 Diligence of Respondent:

The Respondent was diligent in that all violations were

cured by the next inspection in 2002.

 The Respondent has been

cooperative with the Agency and the Attorney General’s Office.

3.

 Economic Benefit of Noncompliance:

The Respondent did not receive any substantial economic

benefit from the alleged noncompliance.

 The civil penalty

contained herein recovers any economic benefit obtained by

Respondent from the alleged noncompliance.

4.

 Deterrence:

A penalty of Five Thousand Dollars

 ($5000.00)

 against the

Respondent will deter future noncompliance by the Respondent and

others.

5.

 Compliance History:

The Respondent has no previously adjudicated violations

of

the Act and Board Regulations.

VII.

TERMS OF SETTLEMENT

1.

 The Respondent admits the violations

 as alleged in the

complaint against him.

2.

 The Respondent

 shall pay a total penalty of the sum of

Five Thousand Dollars

 ($5000.00), payable as follows:

a.

 An initial payment of TWO THOUSAND FIVE

HUNDRED

-7-

($2500.00)

 shall be due

30 days after the date on which the Board

adopts a final order approving this Stipulation and Proposal for

Settlement.

 The remaining payment of TWO THOUSAND FIVE HUNDRED

($2500.00)

 shall be payable in two

(2)

 quarterly installments,

the first coming due four

(4)

 months after the date on which the

Board adopts a final order approving this Stipulation and

proposal for Settlement,

 in the amount of $1250.00.

 A final

payment in the amount of $1250.00 shall be due seven

 (7) months

after the date on which the Board adopts a final order approving

this Stipulation and Proposal for Settlement.

b.

 The payments shall be made by certified check or

money order, payable to the Illinois EPA, designated for deposit

intothe Environmental Protection Trust Fund(”EPTF”), and shall

be sent by first class mail

to:

Illinois Environmental Protection Agency

Fiscal Services

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

IL

 62794-9276

3.

 Respondent’s Social Security

number

 must be on the

certified check or money order.

 For issues relating to the

payment of the penalty, the Respondent may be reached at the

following address:

Mr. Greg Prey

237

1st

Street

•

 LaSalle,

 Illinois 61301

A copy of the certified check or money order, and all related

-8-

correspondence,

 shall be sent by first class mail to:

Paula Becker Wheeler

Assistant Attorney General

Environmental Bureau

188 West Randolph,

20th

 Floor

Chicago,

 Illinois

60601

4.

 If the Respondent fails

 to make any payment

specified within Section VII.2.a.

 of this Stipulation Order on or

before the date upon which the payment is due,

 the Respondent

will be in default and the remaining unpaid balance of the

penalty, plus any accrued interest,

 shall be due and owing

immediately.

5.

 In the event of default,

 the Complainant shall be

entitled to reasonable costs

 of collection,

 including reasonable

attorney’s

 fees.

VIII.

INTEREST ON PENALTIES

1.

 Pursuant to Section 42(g)

 of the Act,

 415 ILCS 5/42(g),

interest shall accrue on any penalty amount owed by the

Respondent not paid within the time prescribed herein,

 at the

maximum rate allowable under Section 1003 (a)

 of the Illinois

Income Tax Act,

 35 ILCS 5/1003 (a) (2002)

2.

 Interest on unpaid penalties shall begin to accrue from

the date the penalty is due and continue to accrue to the date

payment is received by the Illinois EPA.

3.

 Where partial payment is made on any penalty amount

that

 is due,

 such partial payment shall be first applied to any

-9-

interest on unpaid penalties then owing.

4.

 All interest on penalties owed the Complainant

 shall be

paid by certified check or money order payable to the Illinois

EPA for deposit in the EPTF at the above-indicated address.

The

name,

 case number,

 and the Respondent’s Social Security number

shall appear on the face of the certified check or money order.

copy of the certified check or money order and the transmittal

letter shall be sent to:

Paula Becker Wheeler

Assistant Attorney General

 (or other designee)

Environmental Bureau

188 W. Randolph St.,

20th

 Floor

Chicago, Illinois 60601

Ix.

RIGHT

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.

-10-

CEASE

AND

DESIST

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 IV.C.

of

this Stipulation and Proposal for Settlement.

XI.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation and Proposal for Settlement

 in no way

affects Respondent’s

responsibility to comply with any federal

state or local regulations,

 including but not limited to the Act

and Board regulations.

XII.

RELEASE

FROM

LIABILITY

In consideration of the Respondent’s payment as

described in paragraph VII.2.

 above,

 and the Respondent’s

commitment to refrain from future

violations of the Act and Board

regulations, Complainant releases, waives and discharges the

Respondent from any further liability or penalties for violations

of the Act and regulations which were the subject matter of the

Complaint herein, upon the payment of all monies owed.

 However,

nothing in this Stipulation and Proposal for Settlement shall be

construed as a waiver by Complainant

 of the right to redress

future or heretofore undisclosed violations,

 or obtain penalties

with respect thereto.

-11-

WHEREFORE,

 Complainant and Respondent request that the Board

adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

AGREED:

FOR THE COMPLAINANT:

 GREG PREY

LISA

MADIGAN

______

Attorney General of

the State of Illinois

Dated:

Natthew J.

 Dunn,

 Chief

Environmental Enforcement!

Asbes os Litigation Division

OSEMARIE CAZEAU,

 Chi f

Environmental Bureau

Assistant Attorney General

Dated:_________________

ILLINOIS ENVIRONMENTAL

PROTE~Cr~ONAG~N~r~~

By:

___________________

/JØSEP~E.

 SVOBODA

L~hiefLegal Counsel

Dated:

~?//~~

-12-

WHEREFORE,

 Complainant and Respondent request that the Board

adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

AGREED:

FOR THE COMPLAINANT:

LISA

MADIGAN

Attorney General of

the State of Illinois

Matthew J. Dunn,

 Chief

Environmental Enforcement!

Asbestos Litigation Division

ROSEMARIE CAZEAU,

 Chief

Environmental Bureau

Assistant Attorney General

Dated:

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

JOSEPH E. SVOBODA

Chief Legal Counsel

By:

Dated:

GREG PREY

Dated:

-12-

CERTIFICATE OF SERVICE

I,

PAULA

 BECKER

WHEELER,

 an attorney,

 do certify that I

caused

 to be served this 12th day of January,

 2004,

 the foregoing

Stipulation and Proposal for Settlement and Motion to Request

Relief from Hearing Requirement and Notice of Filing, by U.S.

Mail upon the following persons:

Mr. Greg Prey

 Mr. Brad Halloran

King Tire

 Hearing Officer

 •237 l~Street

 100 W. Randolph,

 Suite 11-500

LaSalle,

IL.

 61301-2302

 Chicago,

Ii.

60601

~

PAULA BECKER WHEELER