Lisa Madigan
k1'PORNEY OFNERN,
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R. Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
Dear Clerk Gunn :
Enclosed for filing please find the original and ten copies of a Notice of Filing,
Motion for
Relief From Hearing Requirement and Stipulation and Proposal for Settlement Between the State
of Illinois and Big River Zinc Corporation in regard to the above-captioned matter
.
Please file the
originals and return file-stamped copies to me in the enclosed, self-addressed envelope
.
Thank you for your cooperation and consideration
.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
June 29, 2006
Re :
People v. Big River Zinc Corporation,
et
al
PCB No. 06-151
sten Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
KLG/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706
•
(217) 782-1090
• TTY: (217) 785-2771
• Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
• (312) 814-3000
• TTY: (312) 814-3374
•
Fax: (312) 814-3806
1001 East Main, Carhondale, Illinois 62901
• (618) 529-6400
• TFY: (618) 529-6403
• Fax. (618) 529-6416
RECEIVED
CLERK'S OFFICE
JUL 0 5 2006
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
I
5(
v .
)
PCB No. 06-'i8'f
(Enforcement)
BIG RIVER ZINC CORPORATION,
a
)
Delaware corporation, and ALLIED
)
WASTE TRANSPORTATION, INC.,
)
d/b/a MIDWEST WASTE, a Delaware
)
corporation,
)
Respondent .
)
NOTICE OF FILING
To :
Julie O'Keefe
One Metropolitan Square, Suite 2600
211 North Broadway
St. Louis, MO 63102-2740
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: June 29, 2006
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 NOTICE OF FILING, MOTION FOR RELIEF FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of
which are 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 Div'
BY :
oil
RECEIVED
CLERK'S OFFICE
JUL 0 5 2006
Pollution Control Board
RISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on June 29, 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
:
To :
Julie O'Keefe
One Metropolitan Square, Suite 2600
211 North Broadway
St. Louis, MO 63102-2740
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s)
:
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
ISTEN LAUGHRDIGE GALE
Assistant Attorney General
This filing is submitted on recycled paper
.
/~/
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RER EOV/ED
JUL 0 5 2006
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
ILLINOIS
Pollution Control Board
Complainant,
)
vs .
)
PCB No. 06-151
(Enforcement)
BIG RIVER ZINC CORPORATION, a
)
Delaware corporation, and ALLIED
)
WASTE TRANSPORTATION, INC .,
)
d/b/a MIDWEST WASTE, a Delaware
)
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 ("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 State of Illinois and Big River Zinc Corporation 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)
.
1
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: June 29, 2006
2
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Liti
.1Iivis n
I
BY :
i RISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
CLERKS
lveo
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL 0 5 2 FI
Complainant,
)
STATE OF
ILLINOIS
Pollution Control Board
V .
)
PCB No. 06-151
BIG RIVER ZINC CORPORATION, a
)
Delaware corporation and ALLIED
)
(Enforcement)
WASTE TRANSPORTATION,
INC .
)
d/b/a MIDWEST WASTE, a Delaware
)
corporation,
)
Respondents.
R SET
MENT BE W
N
OPO
STIP
I N
THE STATE OF ILLINOIS AND BIG RIVER ZINC CORPORATION .
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 BIG RIVER ZINC CORPORATION ("Respondent"), 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, Respondent agrees 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
.
I. JURISDICTION
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 511 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 terms and conditions of this Stipulation and to legally
bind them to it .
III. STATEMENT OF FACTS
A .
Parties
1
.
On March 28, 2006, 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 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 (2004) .
3
.
At all times relevant to the Complaint, Respondent was and is a Delaware
corporation that is authorized to transact business in the State of Illinois
.
1
B.
Site Description
At all times relevant to the Complaint, Respondent owned and operated a facility
located at 2401 Mississippi Avenue, Sauget, St . Clair County, Illinois ("facility")
.
2 .
On May 24, 2005, Illinois EPA conducted a Compliance Evaluation Inspection at
the facility to determine the regulatory status of the facility and the facility's compliance with the
Act and Board Regulations. The Illinois EPA inspector reviewed documentation, the
contingency plan, and walked through the facility .
3 .
On May 24, 2005, there was spillage of used oil, oil soaked oil dry, and sludge at
the facility. The roll-off box containing the hazardous waste filter press cloths at the facility was
not labeled as hazardous waste. The updated contingency plan for the facility had not been sent
to all local authorities and the person identified as the Emergency Coordinator in the contingency
plan was not aware that he was the Emergency Coordinator . There were not any records
indicating that the hazardous waste containers were inspected weekly.
4 .
On April 4, 2005, Allied Waste d/b/a Midwest Waste removed a 40 cubic yard
roll-off box containing wood waste hazardous for cadmium from the Respondent's facility and
disposed the waste at the Roxana Landfill Authority landfill, a non-hazardous waste landfill
.
Respondent had intended for Allied Waste to move the material to another location within
Respondent's facility but due to a mis-communication, the material was removed
.
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations
:
2
Count I :
Count II
:
Count III :
Count IV
:
Count V
:
Count VI :
Used Oil Release and Violations, in violation of Section 21 (a) of the Act,
415 ILCS 5/21(a) (2004), and 35111. Adm. Code 722.111 and 739.122(d)
.
Hazardous Waste Violations, in violation of 35 111. Adm. Code
722.134(a)(2) and (a)(3) .
Hazardous Waste Permit Violations, in violation of Section 21 (f) of the
Act, 415 ILCS 5/21(f) (2004), and 35111. Adm. Code 703 .121(a) .
Hazardous Waste Contingency Plan Violations, in violation of 35 111 .
Adm. Code 725 .153 and 725 .155 .
Failure to Perform Equipment Inspections, in violation of 35 111. Adm .
Code 725.274,
Transportation and Disposal of Hazardous Waste, in violation of 35 Ill
.
Adm. Code 728.109(a) .
D .
Admission of Violations
The Respondent represents that it has entered into this Stipulation for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
litigation. By entering into this Stipulation and complying with its terms, the Respondent does
not affirmatively admit the allegations of violation within the Complaint and referenced within
Section III.C herein, and this Stipulation shall not be interpreted as including such admission
.
E .
Compliance Activities to Date
1 .
On December 1, 2005, Respondent announced that it will be closing the facility in
February 2006
.
2
.
On December 12, 2005, Illinois EPA inspected the facility .
3 .
The Respondent sampled the used oil dry to determine whether it was hazardous
.
3
The analysis showed that the used oil dry is TCLP hazardous for lead and cadmium . The
material is charged in a Roaster at the Respondent's facility for metals recovery
.
4 .
During Illinois EPA's inspection, there was no oil spillage or truck cleaning
materials in front of the Maintenance building
.
5
.
The waste filter press-cloth box was properly labeled as hazardous and
documentation of weekly inspections were available for review
6 .
On December 14, 2005, Illinois EPA sent a letter to the Respondent stating that
the facility had returned to compliance
.
IV . APPLICABILITY
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,
employees or successors or assigns to take such action as shall be required to comply with the
provisions of this Stipulation
.
V . 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 .
4
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(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
:
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
5
.
any subsequent compliance
.
In response to these factors, the Complainant states the following
:
1
.
Human health and the environment were threatened and the Illinois EPA's
information gathering responsibilities were hindered by the Respondent's violations .
2 .
There was a social and economic benefit of the facility
.
3
.
Operation of the facility was suitable for the area in which it occurred
.
4 .
Complying with the hazardous materials and waste regulations at the facility is
both technically practicable and economically reasonable
.
5
.
Respondent has subsequently complied with the Act and the Board Regulations
.
5
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(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
:
1
.
the duration and gravity of the violation
;
2
.
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
;
4 .
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 ;
5
.
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 Complainant states as follows
:
1
.
The Respondent failed to fully comply with the hazardous materials and waste
regulations for the wastes and materials used and disposed of at its facility . The violations were
first found on May 24, 2005, and were individually resolved at various times in the following
year.
6
2 .
Respondent was 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
.
The economic benefit for the improper management of hazardous waste was
nominal .
4 .
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Eighteen Thousand Dollars ($18,000.00) will serve to deter further violations and aid
in future voluntary compliance with the Act and Board regulations .
5 .
In 2003, USEPA cited the Respondent for Clean Air Act and RCRA violations. A
penalty of $3,271.00 was assessed.
6 .
Self-disclosure is not at issue in this matter .
7
.
The settlement of this matter does not include a supplemental environmental
project .
VIII. TERMS OF SETTLEMENT
A .
Penalty Payment
The Respondent shall pay a civil penalty in the sum of Eighteen Thousand Dollars
($18,000.00) within fourteen (14) 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
fourteen (14) days from the date the Board adopts and accepts this Stipulation, in a manner
7
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 Gale
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
Melanie Jarvis
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,
8
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
:
Julie O'Keefe
One Metropolitan Square, Suite 2600
211 North Broadway
St. Louis, Missouri 63102-2740
4 .
In the event of default of this Section VM .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 .
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 Vf.D, below, the 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 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, Respondent agrees to waive any rights to contest, in any subsequent
enforcement action or permit proceeding, any allegations that these alleged violations were
adjudicated .
9
C .
Cease and Desist
The Respondent 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
.
D .
Release from Liability
In consideration of the Respondent's payment of the $18,000 .00 penalty and any specified
costs and accrued interest, completion of all activities required hereunder, to Cease and Desist as
contained in Section VIH.C 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 Respondent from any further liability or penalties for violations of the Act and
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 March 28, 2006. 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
d .
liability or claims based on the Respondent's failure to satisfy the requirements of
this Stipulation .
10
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 Respondent .
E .
Enforcement of Board Order
1
.
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. Respondent agrees 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 Respondent 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
.
1 1
WHEREFORE, Complainant and Respondent request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written
.
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 :
S ~'
/
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY : DATE :
(PI -2.U
J 6e
OBERT A. ME SIN
(f 1A
Chief Legal Counsel
BIG RIVER ZINC CORPORATION
BY .
•'
6
R(,E M.
0,d&LDol3 &L
Title :
P4&
S
/P
E IJ % ~
61
12
DATE :
2- `f /`1 I y
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