PEOPLE OF THE STATE OF
ILLINOIS,
)
FED 1
4
,
2096
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
vs .
)
PCB No. 06-45
(Enforcement)
and CHARLES A. WINSLETT,
)
Respondents
.
)
ECOLAB, INC., a Delaware corporation,
To :
Charles A. Wins.lett
c/o Daniel C. Murray
Johnson & Bell
Suite 400
55 East Monroe Street
Chicago, IL 60603-5896
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REGEg ED
CLERK'S OFFICE
NOTICE OF FILING
Ecolab, Inc .
c/o Daniel C. Murray
Johnson & Bell
Suite 400
55 East Monroe Street
Chicago, IL 60603-5896
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, a MOTION FOR RELIEF FROM HEARING REQUIREMENT
and STIPULATION AND PROPOSAL FOR SETTLEMENT, a copy of which is attached hereto and
herewith served upon you .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division,.,,
BY :t j
KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: February 9, 2006
To :
Charles A. Winslett
c/o Daniel C. Murray
Johnson & Bell
Suite 400
55 East Monroe Street
Chicago, IL 60603-5896
CERTIFICATE OF SERVICE
I hereby certify that I did on February 9, 2006, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT
:
Ecolab, Inc .
c/o
Daniel C. Murray
Johnson & Bell
Suite 400
55 East Monroe Street
Chicago, IL 60603-5896
and the original and ten copies by First Class Mail with postage thereon fully prepaid of this
Certificate of Service and Notice of Filing
:
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to
:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
r
PcC
This filing is submitted on recycled paper .
Kristen Laughridge Gale
Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVE
D
CLERK'S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
F 1 12006
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
VS .
)
PCB No. 06-45
(Enforcement)
ECOLAB, INC., a Delaware corporation,
)
and CHARLES A. WINSLETT,
)
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 ("Act"), 415 ILCS 5/31(c)(2) (2004), moves that the Illinois
Pollution Control 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) (2004). In support of
this motion, Complainant states as follows
:
1
.
The parties have reached agreement on all outstanding issues in this matter
.
2 .
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion
.
3 .
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) (2004)
.
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) (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: February 9, 2006
2
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litig ion Diy)sion
BY :
/KRISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDSE
VE
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
)
PCB No. 06-45
ECOLAB, INC., a Delaware corporation
)
and CHARLES A. WINSLETT
)
(Enforcement)
)
Respondents .
)
FEB i '12006
STATE OF ILLINOIS
Pollution Control Board
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 Respondents, Ecolab, Inc . and Charles A. Winslett, have agreed to the making of this
Stipulation and Proposal for Settlement ("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 other proceeding regarding the claims asserted in the Complaint except as otherwise
provided herein. If the Board approves and enters this Stipulation, Respondents agree to be
bound by the Stipulation and Board Order and not to contest their validity in any subsequent
proceeding to implement or enforce their terms
.
1. JURISDICTION
The Board has jurisdiction of the subject matter herein and of the parties consenting
hereto pursuant to the Illinois Envirormmental Protection Act ("Act"), 415 ILCS 5/1 et seq .
(2004) .
II. AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by the
party whom they represent to enter into the teens and conditions of this Stipulation and to legally
bind them to it.
III. STATEMENT OF FACTS
Parties
1
.
On September 21, 2005, a Complaint was filed on behalf of the People of the
State of Illinois by Lisa Madigan, Attorney 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(2004), against the Respondents,
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 (2004)
.
3
.
At all times relevant to the Complaint, Respondent, Ecolab, Inc . was and is a
Delaware corporation that is authorized to transact business in the State of Illinois . Ecolab, Inc
.
provides pest control services .
4 .
Respondent, Charles A. Winslett, is a pesticide technician for Ecolab and can be
reached at 1929 Saint Claire Street, Pekin, Illinois, 61554. Mr. Winslett is licensed to use
pesticides through the Illinois Department of Agriculture, license #1525744
.
Site Description
1
.
Phostoxin Oa is aluminum phosphide and is highly toxic . It is used to fumigate
buildings . Once completely spent, the Phostoxin 0 powder waste has a low oral and dermal
toxicity and consists of aluminum hydroxide, inert ingredients, and about 2%-3% of unreacted
aluminum phosphide.
2
.
On October 13, 2003, Respondent, Charles Winslett finished fumigating the
Mycogen Seed Company
in
Pontiac, Illinois and spread the spent Phostoxin 0 powder waste
along Hurt Road, approximately 1/4 mile west of Apple Road, South Pekin, Tazewell County,
Illinois ("site")
.
3 .
On October 13, 2003, the Tazewell County Sheriffs Office responded to a
complaint of a white vehicle with "Ecolab" on its side dumping a white powder along the side of
Hurt Road. A white powder was at the site along Hurt Road, approximately 1/4 mile west of
Apple Road .
4 .
Illinois EPA niet Tazewell County Sheriffs Officers
on
October 14, 2003 and
inspected the site for the spent Phostoxin 0 powder waste . However, it had rained the night of
October 13, 2003 and no white powder was present when Illinois EPA inspected the site
.
C .
Allegations of Non-Compliance
Complainant contends that the Respondents have violated the following provisions of the
2
Act and Board regulations :
D .
Admission of Violations
The Respondents admit to the violations alleged in the Complaint filed in this matter and
referenced within Section III.C herein
.
E.
Compliance Activities to Date
Ecolab, Inc. created and distributed to its Pest Elimination Field Associates a
memo entitled Spent Aluminum and Magnesium Phosphide Dust Disposal
. The memo states
procedures for the proper handling and disposal of spent aluminum and magnesium phosphide
dust from' space fumigation using aluminum phosphide or magnesium phosphide fumigants
.. It
requires :
1)
All aluminum and magnesium phosphide dust be disposed at a sanitary landfill
.
2)
The Pest Elimination Field Associate must plan for the disposal at a local landfill
capable of accepting the material and receive authorization prior to fumigation .
Prior to ordering any aluminum and magnesium phosphide products, Ecolab's
Materials Management must be notified of the disposal method and the location
of the landfill used for the spent waste .
4)
All fumigation work must have a Fumigation Management Plan which includes
details regarding how the fumigator will deactivate and dispose of the spent
fumigant
.
5)
Any aluminum or magnesium phosphide dust to be disposed must be fully
deactivated on-site by utilizing wet deactivation pursuant to the product label
instructions prior to removal from the site
.
3
Count I:
Section 21(a) and 21(e) of the Act, 415 ILCS 5/21(a), (e) (2004)
Count II :
Section 12(d) of the Act, 415 IL.CS 5/12(d) (2004)
Only Ecolab Pest Elimination authorized Department of Transportation drivers
can transport the fully spent aluminum or magnesium phosphide dust to the
approved landfill .
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the
Respondents, and any officer, director, agent, or employee of the Respondents, as well as any
successors or assigns of the Respondents . The Respondents shall not raise as a defense to any
enforcement action taken pursuant to this Stipulation the failure of any of its officers, directors,
agents, employees or successors or assigns to take such action as shall be required to comply with
the provisions of this Stipulation
.
No change in ownership or corporate status shall in any way alter the responsibilities of
the Respondents under this Stipulation and Proposal for Settlement
.
V. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of the Respondents 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 .
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 3 .3(c) of the Act, 415 ILCS 5133(c)(2004), 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
:
4
l
.
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
5
.
any subsequent compliance
.
In response to these factors, the parties state the following :
I
.
It is Complainant's position that human health and the environment were
threatened by the Respondent's violations
.
2 .
There is social and economic benefit to fumigation operations
.
3
.
Spent Phostoxin © powder waste is not suitable for disposal in the area where it
was disposed .
4 .
Properly disposing of spent Phostoxin 0 powder waste is both technically
practicable and economically reasonable .
5 .
Respondents have subsequently complied with the Act and the Board Regulations
.
VII . CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 514 .2(h)(2004), 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 :
5
1 .
the duration and gravity of the violation ;
the presence or absence of due diligence on the part of the respondent 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 respondent because of delay in compliance
with requirements, in which case the economic benefits shall be determined by the
lowest cost alternative for achieving compliance
;
the amount of monetary penalty which will serve to deter further violations by the
respondent and to otherwise aid in enhancing voluntary compliance with this Act
by the respondent and other persons similarly subject to the Act
;
the number, proximity in time, and gravity of previously adjudicated violations of
this Act by the respondent
;
6,
whether the respondent voluntarily 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," 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 as follows
:
The Respondents improperly disposed of spent Phostoxin 0 powder waste along
the side of a road in South Pekin, Illinois, The violation occurred on October 13, 2003, and was
resolved the next day.
2
.
Respondents were diligent in attempting to come back into compliance with the
Act, Board regulations and applicable federal regulations, once the Illinois EPA notified it of its
noncompliance .
3
.
Economic benefit for the avoidance of proper disposal was nominal because the
amount of material was small .
6
4 .
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Two Thousand Five Hundred Dollars ($2,500 .00) will serve to deter further violations
and aid in future voluntary compliance with the Act and Board regulations
.
To Complainant's knowledge, Respondents have no previously adjudicated
violations of the Act
.
6 .
Self-disclosure is not at issue in this matter
.
The settlement of this matter includes a supplemental environmental project
("SEP"). The SEP is discussed below in Section VIII.A .
VIII. TERMS OF SETTLEMENT
A.
Supplemental Environmental Project
In order to promote the goals ofthe Act to restore, protect and enhance the quality
of the environment, Respondents shall perform the following supplemental enviromnental
project ("SEP"). The value of the SEP is Ten Thousand Dollars ($10,000
..00). The parties agree
that this SEP consists of a monetary payment of Ten Thousand Dollars ($10,000 .00) for the
restoration of a park and playground in South Pekin that was severely damaged by a tornado in
May 2004. The City of South Pekin owns the park . The local Veteran's of Foreign Wars (VFW)
Post and Boy Scout Troop 1232 shall perform the work and Ecolab shall remain in contact the
VFW Post to ensure that the work is completed. The restoration work shall include the painting
and repair of all swings, slides, bars and related equipment, installation ofa new drinking
fountain fixture, procurement and installation of two or three park benches, repair of the existing
park fence and addition of a gate and 300 feet of fence to fully enclose the park, addition of
7
topsoil to level the playground and seeding of the site, and planting of five large trees on the
park's west side for shade. See also Attachment A .
B .
Penalty Payment
1
.
The Respondents shall pay a civil penalty in the summ of Two Thousand Five
Dollars ($2,500.00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation. The Respondents stipulate that payment has been tendered to Respondent's attorney
of record in this matter in a form acceptable to that attorney . Further, Respondents stipulate that
said attorney has been directed to make the penalty payment on behalf of Respondents, within
thirty (30) days 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, designated to the Illinois
Environmental Protection Trust Fund and 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 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
:
Kristen Laughridge
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
James G. Richardson
Assistant Counsel
Illinois Environmental Protection Agency
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) (2004), 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 (2004) . 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, Respondents may be reached at the
following address
:
Ecolab htc .
Law and Regulatory Affairs
370 Wabasha Street
St. Paul, MN 55102-1390
In the event of default of Sections VIILA or VIILB, the Complainant shall be
entitled to all available relief including, but not limited to, reasonable costs of collection and
reasonable attorney's fees .
9
C
.
Future Use
Notwithstanding any other language in this Stipulation to the contrary, and in
consideration of the mutual promises and conditions contained in this Stipulation, including the
Release from Liability contained in Section VIILE, below, the Respondents hereby agree that this
Stipulation may be used against the Respondents in any subsequent enforcement action or permit
proceeding as proof of a past adjudication of violation of the Act and the Board Regulations
promulgated thereunder for all violations alleged in the Complaint in this matter, for purposes of
Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(2004)
.
Further, Respondents agree to waive any rights to contest, in any subsequent enforcement action
or permit proceeding, any allegations that these alleged violations were adjudicated
.
D .
Cease and Desist
The Respondents shall cease and desist from future violations of the Act and Board
Regulations that were the subject matter of the Complaint as outlined in Section IILC
("Allegations of Non-Compliance")-of this Stipulation
.
E .
Release from Liability
In consideration of the Respondents' payment of the $2,500.00 penalty and any specified
costs and accrued interest, completion of all activities required hereunder, to Cease and Desist as
contained in Section VIII.D and upon the Pollution Control Board's acceptance and approval of
the terms of this Stipulation and Proposal for Settlement, the Complainant releases, waives and
discharges the Respondents from any further liability or penalties for violations of the Act and
10
Board Regulations that were the subject matter of the Complaint herein . The release set forth
above does not extend to any matters other than those expressly specified in Complainant's
Complaint filed on September 21, 2005. The Complainant reserves, and this Stipulation is
without prejudice to, all rights of the State of Illinois against the Respondents 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
liability or claims based on the Respondent's failure to satisfy the requirements of
this Stipulation .
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 .315 of the Act, 415 ILCS 5/3 .315, or entity other than the Respondents .
F.
Modification of Stipulation
The patties may, by mutual written consent, agree to extend any compliance dates or
modify the tens of this Stipulation. A request for any modification shall be made in writing and
submitted to the contact persons identified in Section VIII
..B. Any such request shall be made by
separate document, and shall not be submitted within any other report or submittal required by
this Stipulation. Any such agreed modification shall be in writing, signed by authorized
II
representatives of each party, and then accompany ajoint motion to the Illinois Pollution Control
Board seeking a modification of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended .
G .
Enforcement of Board Order
I
.
Upon the entry of the Board's Order approving and accepting this Stipulation and
Proposal for Settlement, that Order is a binding and enforceable order of the Illinois Pollution
Control Board and may be enforced as such through any and all available means
.
2 .
Respondents agree that notice of any subsequent proceeding to enforce the Board
Order approving and accepting this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process
.
3 .
The parties agree that, if the Board does not approve and accept this Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein
.
4 .
It is the intent of the Complainant and Respondents that the provisions of this
Stipulation and Proposal for Settlement and any Board Order accepting and approving such shall
be severable, and should any provision be declared by a court of competent jurisdiction to be
inconsistent with state or federal law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect
.
12
WHEREFORE, Complainant and Respondents request that the Board adopt and accept
the foregoing Stipulation and Proposal for Settlement as written ..
ILLINOIS ENVIRONMENTAL
PROTECTI
AGENCY
BY :
kk'"'
R
ERT
. MESS
A
Chief Legal Counsel
DATE:
2-['
Ic ~
ECOLAB INC
.
BY : DATE :
/4
Name :
Bxim`
Title
:
CHARLES A. WINSLETT'
BY
:
DATE :
,'li oL
1 3
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY :
THOMAS DAVIS, Chief
DATE
:
2
L/0 7
A)
C
Environmental Bureau
Assistant Attorney General
ATTACHMENT A
SUPPLEMENTAL ENVIRONMENTAL PROJECT
The focus of the Supplemental Environmental Project (SEP) is a long-neglected,
stonm-damaged public park centrally located on Main Street (adjacent to the South Pekin
Fire Department at 209 W. Main), South Pekin, Tazewell County, Illinois . This city-
owned park is in an overall state of general disrepair. With the assistance of Boy Scout
Troop 1232 (contact: Bradley Kupris) and VFW Post 12 .32 (contact: Ronald Hubert),
Ecolab's SEP will undertake a general renovation of the park, to restore it for regular
public use
.
.
Ecolab assumes responsibility for either repairing and painting the playground
equipment, or replacing it if repair is not feasible. Park benches will be acquired, and an
appropriate fence extension with a gate will be installed. Topsoil will be added so as to
level the playground, and shade trees will be planted
.
VFW Post 1232 will assist with administering the SEP, and wherever feasible,
labor will be performed by Boy Scout Troop 1232 and other volunteers, assisted by local
professional contractors . Ecolab will monitor progress of the work, to assure completion
of the project
.
