CLERK’S 0FF~C~

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NOV

4 2003

PE~OPLEOF THE STATE OF ILLINOIS,

STATE

OF

ILLINOIS

Complainant,

)

Pollution

Control Board

v.

)

No.

POE

03

-

20

(Enforcement

-

Water)

ACME REFINING SCRAP IRON

AND

METAL

COMPANY,

an Illinois corporation

Respondents.

NOTICE

OF FILING

TO:

See

Attached

Service

List

PLEASE TAKE NOTICE that on November

4,

2003,

we filed with

the Illinois Pollution Control Board a

“Stipulation and Proposal

for Settlement” and “Relief from the Hearing Requirement”,

a true

and correct copy

of which

is attached and hereby served upon you.

Respectfully submitted,

LISA

MADIGAN

Attorney General

State of Illinois

BY:

~

~

MITCHELL

L.

COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago, Illinois

60601

(312)

814-5282

---

SERVICE

LIST

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James

R. Thompson Center,

Suite 11-500

100 W. Randolph

Chicago,

IL 60601

Adam Meek

Jim Mitchell

Katten Muchin Zavis Rosenman

525 W. Monroe,

Suite 1600

Chicago,

Illinois

60661-3693

---

RECEIVED

CLERK’S OFF!CE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NOV

4

2003

PEOPLE OF THE STATE OF ILLINOIS,

ex

red..

LISA

MADIGAN,

Attorney

)

STATE

OF

ILLINOIS

General

of

the

State

of

Illinois

Pollution Control Board

Complainant,

)

POE No.

03

-

20

(Enforcement

-

Water)

vs.

ACME REFINING SCRAP IRON AND

METAL COMPANY,

an Illinois

corporation,

Respondent.

STIPULATION

AND

PROPOSAL

FOR

SETTLEMENT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

ex red..

LISA

MADIGAN, Attorney General of the State of Illinois,

the Illinois

Environmental Protection Agency

(“Illinois EPA”)

,

and Respondent,

ACME REFINING SCRAP IRON AND METAL COMPANY

(“ACME”),

an Illinois

corporation,

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 trial 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

1

---

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 not to contest its validity in any

subsequent proceeding to implement or enforce its terms.

Insolvency of the Respondent by filing a petition for bankruptcy

shall not be deemed a proceeding to contest the validity of this

Stipulation.

I.

JURISDICTION

The Board has jurisdiction over the subject matter herein

and

of

the

parties

consenting

hereto

pursuant

to

the

Illinois

Environmental Protection Act

(“Act”)

,

415

ILCS

5/1

et seq.

(2002)

II.

AUTHORIZATION

The undersigned representatives for each party certify that

they

are

fully

authorized

by

the

party

whom

they

represent

to

enter

into

the

terms

and

conditions

of

this

Stipulation

Agreement

and

to

legally

bind

them

to

it.

A.

Parties

1.

On

August

22,

2002,

a

Complaint

was

filed

on

behalf

of

the People of the State of Illinois by LISA

MADIGAN,

Attorney

2

---

General of the State of Illinois,

on her own motion and upon the

request of the Illinois EPA, pursuant to Section 31 of the Act,

415 ILCS 5/31

(2002)

,

against the Respondent.

2.

The Illinois EPA is an administrative agency of the

State of Illinois,

created pursuant to Section 4 of the Act,

415

ILCS 5/4

(2002)

3.

At all times relevant to the Complaint,

including April

13,

2001,

Respondent,

ACME,

was

and

is

an

Illinois

corporation

that

is authorized to transact business in the State of Illinois.

B.

Site Description

1.

At all times relevant to this Complaint,

Respondent

Acme operated Transfer Station #101 at 1409 Rock.land Road,

Lake

Bluff,

Lake County,

Illinois.

2.

Transfer Station #101 stores scrap metal. Prior to May,

2001,

some

of

the

scrap

metal

was

coated

in

oil.

The

oil

coated

scrap metal was stored in large piles on an open-air concrete

pad.

The

concrete

pad

was

designed

to

direct

oily

discharges

from

the

stored

scrap

metal

to

a

sump.

ACME

pumped

the

oily

discharge

from

the

sump

into

drums

for

removal

from

the

site.

C.

Allegations

of

Non-Compliance

1.

Complainant

contends

that

the

Respondent

has

violated

the

following

provisions

of

the

Act

and

Board

Regulations:

Count

I:

Water

Pollution

Violation

of

Section

12(a)

of

the

Act,

415

ILCS

5/12

(a)

(2002)

3

---

Count II: Permit Violation

Violation of Section 12(f)

of the Act,

415 ILCS 5/12(f)

(2002); and Section 309.102(a)

of the Board

Regulations,

35

Ill. Adm.

Code 309.102(a).

D.

.

Admission

of Violations

The Respondent neither admits nor denies the violations

alleged in the Complaint filed in this matter and referenced

herein.

E.

Compliance Activities

to

Date

1. Upon learning of the oil discharge into the tributary

ditch of the Chicago River on April

13,

2001, ACME arranged for

the removal

of oil impacted liquid. Additionally, ACME no longer

accepts oil coated metal shavings or turnings for storage at the

site since this material was the probable cause of the oily

discharge.

2. ACME is now covered by a National Pollutant Discharge

Elimination System

(“NPDES”)

permit and has prepared its Storm.

Water Pollution Prevention Plan

(“SWPPP”)

as required by its

NPDES permit.

IV.

IMPACT ON THE PUBLIC RESULTING

FROM NONCOMPLIANCE

Section 33 (c)

of the Act,

415 ILCS 5/33 (c) (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

4

---

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 state:

1.

The Parties state that the impact to the public

resulting from ACME’s non-compliance was that the non-compliance

(specifically,

discharging oil and operating without an NPDES

permit)

presented a potential for risk of harm to human health

and the environment.

2.

The Parties agree that ACME’s business is of social and

economic benefit.

3.

The parties agree that the facility was suitable to the

area in which it is located when the concrete pads near the small

tributary ditch are not overloaded with contaminants.

4.

The parties agree that complying with the requirements

of the Act is both technically practicable and economically

5

---

reasonable.

5.

The parties state that ACME helped remediate the site

and surrounding waterway,

improved its material handling

practices

to reduce the risk of further discharges into State

waters,

and now operates under an NPDES permit.

V.

CONSIDERATION OF SECTION 42(h)

FAQTORS

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.

6

---

In response to these factors, the parties state:

1.

The Parties state that the duration of the violation

for water pollution occurred from at least from April

13,

2001,

until the oil liquid was removed some days later, and for

operating without an NPDES permit occurred until August

10, 2001.

2.

The parties agree that ACME demonstrated diligence in

regard to these violations after the State made ACME aware of the

violations.

ACME subsequently arranged for the removal of the

oily liquid and applied for the NPDES permit.

3.

The Parties agree ACME received some economic benefit

by delaying compliance with the requirements to obtain an NPDES

permit. ACME leased transfer station #101 in April,

1999,

but did

not take the steps necessary to come into compliance with those

provisions of the Act and regulations that are cited in this

Stipulation,

including application for an NPDES permit,

until

April,

2001.

4.

The Parties agree that the appropriate penalty that

will serve as a deterrence

is $21,000.00.

5.

Respondent has one previously adjudicated violation of

the Act,

a 1990 air pollution violation for a facility located at

3357 Justine Street in Chicago,

Illinois.

VI.

APPLICABILITY

A.

This Stipulation Agreement

shall apply to and be binding

7

---

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 Agreement the failure of any of its officers,

directors,

agents,

or employees to take such actions as

shall be

required to comply with the provisions of this Stipulation.

B.

No change in ownership,

corporate status or operator of the

facility shall

in any way alter the responsibilities of the

Respondent under this Stipulation.

In the event of any

conveyance of title,

easement or other interest in the facility,

the Respondent

shall continue to be bound by and remain liable

for performance of all obligations under this Stipulation.

In

appropriate circumstances, however,

the Respondent and a

contemplated future owner or operator of the facility may jointly

request,

and the Complainant,

in its discretion, may consider

modification of this Stipulation to obligate the proposed

purchaser or operator to carry out future requirements of this

Stipulation in place of,

or in addition to, the Respondent.

C.

Severability:

It

is the intent of the Complainant and

Respondent

that the provisions of this Stipulation and Proposal

for Settlement

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

8

---

remaining clauses shall remain in full force and effect.

VII.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation in no way affects the responsibilities of

the Respondent to comply with any other federal,

state or local

laws or regulations, including but not limited to the Act,

and

the Board Regulations,

35

Ill. Mm.

Code,

Subtitles A through H.

VIII.

TERMS

OF

SETTLEMENT

A.

Penalty

1.

a.

The Respondent

shall pay a civil penalty of Twenty

One Thousand Dollars

($21,000.00)

.

Within thirty

(30)

days after

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

Stipulation,

Respondent shall pay $21,000.00.

Payment

shall be

made as follows:

b.

Payment shall be made by certified check or money

order, payable to the Illinois EPA for deposit into the

Environmental Protection Trust Fund

(“EPTF”) and shall be sent by

first class mail and delivered to:

Illinois Environmental Protection Agency

Fiscal Services

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

IL 62794-9276

c.

The name,

case number,

and the Respondent’s

Federal Employer Identification

Number

(“FEIN”),

36~7~i,

9

---

shall appear on the face of the certified checks or money orders.

A copy of the certified check or money order and the transmittal

letter shall be sent

to:

Mitchell

L.

Cohen

Assistant Attorney General

Environmental Bureau

188 West Randolph,

Suite 2001

Chicago, Illinois 60601

3.

For purposes of payment and collection,

the

Respondent’s attorney may be reached at the following address:

Adam M. Meek

Katten Muchin Zavis Rosenman

525 West Monroe,

Suite 1600

Chicago,

Illinois 60661-3693

4.

For purposes of payment and collection,

Respondent may

be reached at

the following addresses:

ACME Refining Company

3357 South Justine Street

Chicago,

Illinois 60608

5.

In the event

of default, the Complainant shall be

entitled to reasonable costs

of collection,

including reasonable

attorney’s

fees.

B.

Interest

on

Penalties

1.

Pursuant to Section 42(g)

of the Act,

415 ILCS 5/42

(g) (2002),

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)

10

---

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

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 FEIN shall appear on the

face of the certified check or money order.

A copy of the

certified check or money order and the transmittal letter shall

be sent to:

Mitchell

L.

Cohen

Assistant Attorney General

Environmental Bureau

188 West Randolph St.,Suite 2001

Chicago, Illinois 60601

C.

Future Use

Notwithstanding any other language in this Stipulation

Agreement to the contrary,

this Stipulation may .be asserted

against the Respondent

in any subsequent enforcement action as

evidence of a past adjudication of violation of the Act and the

Board Regulations promulgated thereunder,

for purposes

of

Sections 39(i)

and/or 42(h)

of the Act,

415 ILCS 5/39(i)

and/or

5/42

(h) (2002)

11

---

D.

Cease and Desist

The Respondent

shall cease and desist from all future

violations of the Act and Board Regulations,

including, but not

limited to those violations that are outlined in Section III.C.

of this Stipulation.

E.

Release

from

Liability

In consideration of the Respondent’s payment of a $21,000.00

penalty,

the Complainant releases, waives and discharges the

Respondent from further liability or penalties for any 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 August 22,

2002.

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 forfuture violation of state,

federal,

local,

and common laws and/or regulations;

c.

liability for natural

re.sources damage arising out of

the alleged violations;

and

d.

liability or claims based on the Respondent’s failure

12

---

to satisfy the requirements of this Stipulation Agreement.

Nothing in this Stipulation is intended as a waiver,

discharge,

release, or covenant not to sue for any claim or cause

of action,

administrative or judicial,

civil

or criminal,

past or

future,

in law, or in equity, which the State of Illinois or the

Illinois EPA may have against any person,

as defined by Section

3.26 of the Act,

415 ILCS 5/3.26

(2002),

or entity other than the

Respondent.

F.

Retention of Jurisdiction

The Board shall retain jurisdiction of this matter for the.

purpose of interpreting and enforcing the terms and conditions of

the Stipulation.

G.

Enforcement

of

Stipulation

1.

Upon the entry of this Stipulation,

any party hereto,

upon motion, may reinstate these proceedings solely for the

purpose of enforcing the terms and conditions of this

Stipulation.

This Stipulation

is a binding and enforceable order

of the Board and may be enforced by the Illinois Circuit Court

through any and all available means.

2.

Respondent agrees that notice of any subsequent

proceeding to enforce this Stipulation may be made by mail and

waives any requirement of service of process.

13

---

WHEREFORE,

the parties, by their representatives,

enter into

this Stipulation and submit

it to the Board that it may be

approved and entered.

AGREED:

FOR THE COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

ex

red..

LISA MADIGAN,

Attorney General of the

State

of Illinois

MATTHEW

J. DUNN,

Chief

Environmental Enforcement

/

Asb~~tosLitigation Dvision

BY:

__________________

R

EMA

I~CAZEAU, C~N~f

Environmen?iY Bureau

Assistant Attorney Genera

DATE:

~/a7o~

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

J SEPH

.

SVOBODA

hief Legal Counsel

DATE:

________

FOR THE RESPONDENT:

ACME REFINING SCRAP IRON AND METAL

BY:

DATE:

Larry Baron

Its President

COMPANY

14

---

WHEREFORE,

the parties, by their representatives,

enter into

this Stipulation and submit it

to the Board that

it may be

approved and entered.

AGREED:

FOR THE COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

ex

red..

LISA MADIGA.N,

Attorney General of the

State of Illinois

MATTHEW J.

DUNN,

Chief

Environmental Enforcement

/

Asb~toS Litigation D’vision

BY:

C-t.—.’--&_~

BY:

R

EMA

CAZEAU,

‘

ef

Environmenta

Bureau

Assistant Attorney Genera

DATE:

_________________

DATE:

FOR THE RESPONDENT:

ACME REFINING SCRAP IRON AND METAL

DATE:

/~/q/c~~

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

J SEPH

.

SVOBODA

hief Legal Counsel

COMPANY

?fo

3

BY:

Its President

14

---

RECEIVED

CLFR~c’.c

~

BEFORE

THE ILLINOIS

POLLUTION CONTROL BOARD

NUV

4

PEOPLE OF THE STATE OF ILLINOIS,

)

STATE

OF ILLINOIS

Complainant,

)

POllUtiQ~

ControlBoard

v.

)

No. PCB 03

-

20

(Enforcement

-

Water)

ACME REFINING SCRAP IRON

AND

METAL

COMPANY, an Illinois corporation

Respondents.

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

(~!ActTI)

,

415 ILCS 5/31(c)

(2)

(2002),

moves that

the Illinois Pollution Control Board

(‘~Board”) grant the parties

in the above-captioned matter relief from the hearing requirement

imposed by Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2002)

.

In support of this motion,

Complainant states as

follows:

1.

The Complaint in this matter alleges violation of the

Sections

12(a)

and

(f)

of the Act,

415 ILCS 5/12(a)

and

(f) (2002)

2.

Complainant

is filing this Motion and a Stipulation and

Proposal for Settlement with the Board.

3.

The parties have reached agreement on all outstanding

issues in this matter.

4.

This agreement is presented to the Board in a

Stipulation and Proposal for Settlement filed this same date.

---

5.

All parties agree that a hearing on the Stipulation and

Proposal for Settlement

is not necessary,

and respectfully

request relief from such a hearing as allowed by Section 31(c)

(2)

of the Act,

415 ILCS 5/31 (c) (2)

(2002)

WHEREFORE,

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

hereby requests that the Board grant this motion for relief from

the hearing requirement set forth in Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2002).

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

BY:

..2.~

..,,..,~

MITCHELL L.

COHEN

Assistant Attorney General

Environmental Bureau

188 W.

Randolph St.,

20th Floor

Chicago, Illinois

60601

(312)

814-5282

DATE:

November

4,

2003

I:\MLC\ACME\MoRelHrgReq.wpd

---

CERTIFICATE

OF

SERVICE

I, MITCHELL COHEN,

an Assistant Attorney General,

certify

that on the 4th day of November,

2003,

I caused to be served by

First Class Mail the foregoing

“Stipulation and Proposal

for

Settlement”

and

“Relief

from

the

Hearing

Requirement”.to the

parties named on the attached service

list, by depositing same in

postage prepaid envelopes with the United States Postal Service

located at 100 West Randolph Street,

Chicago, Illinois 60601.

MITCHELL L.

CO

N