BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

ex

rel.

LISA MADIGAN, Attorney

General of the State of Illinois,

Complainant,

VS.

OASIS IN~USTRIES, INC.,

an Illinois corporation,

Respondent.

)

)

)

PCB 05-98

1

(Enforcement

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Air)

)

1

)

VIA ELECTRONIC FILING

1

1

NOTICE OF FILING

TO:

Heidi E. Hanson, Esq.

Clerk

472 1 Franklin Avenue, Suite 1500

Illinois Pollution Control Board

Western Springs, Illinois 60558- 1720

James R. Thompson Center

100 W. Randolph Street, Suite 11-500

+

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I have today filed with the Office of the

clerk of the

Illinois Pollution Control Board an original and nine copies of the Stipulation and Proposal for

Settlement, an Agreed Motion for Relief from the Hearing Requirement, Notice of Filing and a

Certificate of Service, a copy of which is attached herewith and served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

BY:

ZEMEHERET

A=&&

BEREKET-AB

Assistant Attorney General

Environmental Bureau North

69 West Washington Street, Suite 1800

Chicago, IL 60602

(312) 814-3816

DATE: June 29,2007

THIS FILING IS SUBMITTED ON RECYCLED PAPER

Electronic Filing, Received, Clerk's Office, June 29, 2007

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

)

ex rel. LISA MADIGAN, Attorney

1

General of the State of Illinois,

)

)

Complainant,

1

)

1

v.

1

)

OASIS INDUSTRIES, INC.,

)

an Illinois corporation,

)

)

Respondent.

)

1

PCB 05-98

(Enforcement

-

Air)

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 OASIS

INDUSTRIES, INC., an Illinois 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 represent a summary of the

0

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

Electronic Filing, Received, Clerk's Office, June 29, 2007

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Stipulation, the parties agree to be bound by the Stip~~lation 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 5/1

et seq. (2004).

11. 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.

A.

Parties

1. On November 22, 2004, 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 an Illinois corporation in good standing.

Electronic Filing, Received, Clerk's Office, June 29, 2007

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B. Site Description

1. At all times relevant to the Complaint, Respondent

owned and operated a plant that manufactures fiberglass bathtubs

and shower stalls located at 1600 Mountain Road, Aurora, Kane

County, Illinois (Facility).

2. Respondent uses spray booths to apply polyester resins

and other raw materials in the manufacture of the desired

products. Emission units at the Facility include,

gelcoat spray

booths,

skincoat spray booths, and final coat spray booths.

C. Allegations of Non-Compliance

Count I

:

Operating a Major Source Without a CAAPP

Permit: a violation of Section

39.5(6)(b) of

the Act, 415 ILCS

5/39.5 (6) (b) (2004)

;

Count 11:

Construction of a Major Source in Violation

of New Source Review: a violation of Section

9 (a) of the Act, 415 ILCS 5/9 (a)

(2004), and

35

Ill. Adm. Code 203.201;

Count

111:

Count IV:

Count V:

Failure to Meet with the Lowest Achievable

Emission Rate (LAER) Requirements

:

a

violation of Section

9(a) of the Act, 415

ILCS 5/9 (a)

(2004), and 35 Ill. Adm. Code

203.301 (b)

,

and (d) (1) (2) (3) and 203.302

(a) (1) (D);

Failure to Timely Submit an Emissions

Reduction Market System (ERMS) Application:

a

violation of Section 9.8(b) of the Act, 415

ILCS

5/9.8(b)(2004), and 35 Ill. Adm. Code

205.310 (a)

(2)

;

Exceeding Permit Limits: violation of Section

9(b) of the Act, 415 IlCS 5/9(b) (2004), and

Condition 1 of Joint Construction and

Operating Permit No. 98020084;

Electronic Filing, Received, Clerk's Office, June 29, 2007

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Count VI

:

Failure to File Accurate and Complete Annual

Emissions Reports: a violation of Section

9 (a) of the 415 ILCS 5/9 (a)

(2004), and 35

Ill. Adm. Code 201.302 (a) and 254.132 (a)

.

D. Compliance Status

On November 26, 2003, IEPA issued to Respondent a CAAPP

permit. Currently, Respondent is in compliance.

E. Non-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 denies, except as set forth in the

Answer and Affirmative Defenses, the allegations of violation

within the Complaint and referenced within Section

1II.C herein,

and this Stipulation shall not be interpreted as including such

admission.

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

Electronic Filing, Received, Clerk's Office, June 29, 2007

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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.

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 parties agree as follows:

Electronic Filing, Received, Clerk's Office, June 29, 2007

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1. The impact to the public from the alleged violations of

the Act would be the actual and threatened air pollution to the

environment of the State of Illinois. The parties acknowledge the

programmatic significance of the air pollution control

regulations including the permit program,

ERMs and New Source

Review, to the State of Illinois and agree that failure to comply

with those requirements would constitute an injury.

2. There is social and economic benefit to Respondent's

manufacturing facility.

3. Operation of Respondent's facility is suitable for the

area in which it is located.

4. Complainant asserts compliance with the Act, applicable

regulations, and permit requirements was both technically

practicable and economically reasonable. Respondent disagrees,

citing the emission factor issue set forth more fully in Section

VII(1) below.

5. Respondent has returned to compliance with the

requirements of the Act and Board Regulations.

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:

Electronic Filing, Received, Clerk's Office, June 29, 2007

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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

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:

1. Complainant alleges that Respondent has been

noncompliant with its emission limits since at least 2001 and

possibly earlier. Further, Respondent failed to timely submit the

Electronic Filing, Received, Clerk's Office, June 29, 2007

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required CAAPP permit and ERMs baseline applications, and failed

to accurately report its emissions to the Illinois EPA on its

Annual Emissions Report

(AERs).

Respondent, on the other hand, alleges that it timely

applied for the CAAPP permit and that any violations relating to

emissions or reporting of emissions were caused or aggravated by

the confusion surrounding the USEPA

f

s March 18, 1998 repudiation

of the AP

-42 emission factor commonly used in Oasis

f

industry and

which had been referenced in Oasis 1997 permit. No alternative

emission factor was provided and eventually Oasis undertook to

develop its own emission factor which was written into its permit

in 2003. In the intervening years there was no officially

approved method for it to use to determine its emissions.

2. Respondent timely responded to the Violation Notice and

has submitted additional information to the Illinois EPA as

required.

3. The $40,000.00 (Forty Thousand Dollars) civil penalty

agreed to herein, negates any economic benefits accrued by the

Respondent by its alleged failure to comply with the requirements

of the Act.

4. Based upon the specific facts of this matter, a penalty

of Forty Thousand Dollars ($40,000.00) will serve to deter

further violations and aid in future voluntary compliance with

the requirements of the Act and Board regulations.

Electronic Filing, Received, Clerk's Office, June 29, 2007

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5. To Complainant's knowledge, Respondent has no

previously adjudicated violations of the Act.

6. Self-disclosure is not at issue in this matter.

7. The settlement of this matter does not include a

supplemental environmental project.

A.

Penalty Payment

1. The Respondent shall pay a civil penalty in the sum of

Forty Thousand Dollars ($40,000.00) within thirty (30) days from

the date the Board adopts and accepts this Stipulation. The

penalty described in this Stipulation shall be paid by certified

check or money order made 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 and Respondent's Federal Employer

Identification Number (

"FEIN") shall appear on the certified

check or money order. A copy of the certified check or money

order or record of electronic funds transfer and any transmittal

letter shall be sent to:

Electronic Filing, Received, Clerk's Office, June 29, 2007

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Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Bureau

188

W. Randolph St., 2oth Floor

Chicago, Illinois 60601

B.

Interest

1. 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 or

money order payable to the Illinois EPA, designated to the

Illinois Environmental Protection Trust Fund and delivered to the

address and in the manner described above.

2. For purposes of payment and collection, correspondence

to Respondent shall be copied to the addresses listed in Section

VIII.

F.

3. In the event of default of this Section VIII.B, the

Complainant shall be entitled to all available relief including,

but not limited to, reasonable costs of collection and reasonable

attorney

f

s fees.

Electronic Filing, Received, Clerk's Office, June 29, 2007

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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

VIII.E, below, the Respondent

hereby agrees that this Stipulation may be used against the

Respondent in any subsequent enforcement action or permit

proceeding as evidence of a past adjudication of violation of the

Act and the Board Regulations promulgated thereunder for all

violations admitted in the Answer and Affirmative Defenses in

this matter, for purposes of Section

39(a) and/or 42 (h) of the

Act, 415 ILCS 5/39 (a) and/or

5/42 (h) (2004)

.

D. 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

1II.C (Allegations of Non-

compliance) of this Stipulation.

Electronic Filing, Received, Clerk's Office, June 29, 2007

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E. Release from Liability

In consideration of the Respondent's payment of the

$40,000.00 (Forty Thousand Dollars) penalty and any specified

costs and accrued interest, its commitment to Cease and Desist as

contained in Section

V1II.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 Respondent, officers, directors, agents, or

employees of Respondent, as well as any successors or assigns of

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 November 22, 2004. 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

Electronic Filing, Received, Clerk's Office, June 29, 2007

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d. liability or claims based on the Respondent's failure

to satisfy the requirements of this Stipulation.

Except as set forth above, 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

(2004), or entity other than the Respondent.

F.

Correspondence, Reports and Other Documents

Any and all correspondence, reports and any other documents

required under this Stipulation, except for payments pursuant to

Sections VIII.A.l. (Penalty Payment) of this Stipulation shall be

submitted as follows:

As to the Complainant

Zemeheret Bereket

-Ab

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

2oth Floor

Chicago, Illinois 60601

Maureen Wozniak

Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794

-9276

Electronic Filing, Received, Clerk's Office, June 29, 2007

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Manager

Compliance and Enforcement Section

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794

-9276

As to the Respondent

Mr. William Jahnke

Oasis Industries, Inc.

1600 Mountain Street

Aurora, Illinois 60505

Mr. Kent A. Gaertner

Springer, Brown, Covey, Gaertner and Davis,

LLC

Wheaton Executive Center

400 South County Farm Road, Suite 330

Wheaton, Illinois 60187

G. Modification of Stipulation

The parties may, by mutual written consent, agree to extend

any compliance dates or modify the terms of this Stipulation. A

request for any modification shall be made in writing and

submitted to the contact persons identified in Section

VII1.F.

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 representatives of each party, and

then accompany a joint 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.

Electronic Filing, Received, Clerk's Office, June 29, 2007

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H. 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

to the contacts shown for Respondent in

V1II.F. and does not

hereby waive any requirement of service of process.

I.

Effective Date of Settlement

The parties agree that the Stipulation and Proposal for

settlement shall become effective and binding only when executed

by all parties and each and every one of the terms and conditions

of the settlement set forth herein are approved by the Illinois

Pollution Control Board as written.

WHEREFORE, Complainant and Respondent request that the Board

adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

Electronic Filing, Received, Clerk's Office, June 29, 2007

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PEOPLE OF THE STATE OF ILLINOIS,

LISA

MADIGAN

Attorney General

State of Illinois

MATTHEW

J. DUNN, Chief

Environmental Enforcement/

itigation Division

Assistant Attorne

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY

BY:

1L

6-

4-

ROBERT A'. MESSIN#

Chief Legal Counsel

OASIS INDUSTRIES, INC.

President

DATE

:

hb&

Electronic Filing, Received, Clerk's Office, June 29, 2007

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

ex

rel.

LISA MADIGAN, Attorney

General of the State of Illinois,

Complainant,

VS.

OASIS INDUSTRIES, INC.,

an Illinois corporation,

Respondent.

1

1

)

)

PCB 05-98

1

)

(Enforcement

-

Air)

)

)

1

1

)

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AGREED MOTION TO REQUEST RELIEF

'FROM THE HEARING REOUIREMENT

In support of this Motion, the parties state as follows:

1.

Today, the People of the State of Illinois, filed a Stipulation and Proposal for

Settlement, with the Illinois Pollution Control Board.

2.

Section

31(c)(2)

bf

the Illinois Environmental Protection Act, ("~ct"), 41 5 ILCS

513 1 (c)(2)(2006) 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).

. . .

3.

Complainant and Respondent agree that a formal hearing is not necessary to

conclude this matter and wish to avail themselves of Section

3l(c)(2) of the Act, 415 ILCS

Electronic Filing, Received, Clerk's Office, June 29, 2007

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WHEREFORE, Complainant and Respondent request relief from the hearing requirement

pursuant to Section 3

l(c)(2) of the Act.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

MATTHEW

J. DUNN, Chief

Environmental Enforcement/

Asbestos Litigation Division

ROSEMARIE CAZEAU, Chief

Environmental Bureau

BY:

ZEMEHERET

%a&

BEREKET-AB

Assistant Attorney General

Environmental Bureau North

69 West Washington Street, Suite 1800

Chicago, Illinois 60602

(312) 814-3816

DATE: June 29,2007

G:\Environmental EnforcementE BEREKET-AB\Oasis

-

Agreed Mot to Req Relief 6-29-07.wpd

Electronic Filing, Received, Clerk's Office, June 29, 2007

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CERTIFICATE OF SERVICE

I, ZEMEHERET BEREKET-AB, an Assistant Attorney General, do certify that I caused

to be served on this

2gth day of June, 2007, the foregoing Notice of Filing, a Stipulation and

Proposal for Settlement, and an Agreed Motion for Relief from the Hearing Requirement, upon

the person listed on said Notice by placing same in an envelope bearing sufficient postage with

the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois.

Electronic Filing, Received, Clerk's Office, June 29, 2007