BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF
)
k~ECE~VED
)
JUL
32003
Complainant,
)
STATE OF ILLINOIS
PCB
03-117
Pollution
Control Board
BI
STATE TIRE,
INC., an
Illinois corporation,
Respondent.
NOTICE
OF FILING
To:
Mr. Bob Paulsen
Bi-State Tire,
Inc.
730 3VtAvenue
Rock Island, IL 61201
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,
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
Litigatio
vision
BY:____________________
DELBERT D~HA
CHEMEYER
Assistant Attorney General
Environmental Bureau
500 South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
July 1,2003
CERTIFICATE OF SERVICE
1
hereby
certify
that
I
did on July 1, 2003,
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:
Mr.
Bob
Paulsen
Bi-State Tire,
Inc.
7303lstAvenue
Rock Island, IL 61201
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
State of Illinois
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 Sudman
Hearing Officer
Illinois Pollution
Control
Board
600 South Second Street
Springfield,
IL 62704
Delbert D.
Hasc~meyer
Assistant Attorney General
This filing
is submitted
on
recycled paper.
REE~EIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF
)
JUL
32003
ILLINOIS,
STATE OF ILUNOIS
Complainant,
)
POllUtiOn Control Board
)
v.
)
PCB No. 03-117
)
BI STATE TIRE, INC.,
an
)
Illinois
corporation,
)
)
Respondent.
MOTION
FOR RELIEF
FROM HEARING
REQUIREMENT
NOW
COMES Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MAD IGAN, Attorney General
of the State of Illinois,
and p~~rsuant
to Section 31(c)(2) of the
Illinois
Environmental Protection Act (“Act”), 415
ILCS 5/31(c)(2)
(2002),
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) (2002).
In
support of
this motion, Complainant
states as follows:
1.
On
February 5, 2003,
Complainant filed a Complaint with the Board, alleging
violations regarding Respondent’s tire business located
in
Rock Island,
Illinois.
2.
Since that filing,
the parties have
reached agreement
on all
outstanding
issues
in
this matter.
3.
This agreement
is presented to the Board
in
a Stipulation and
Proposal for
Settlement, filed contemporaneously with this
motion.
4.
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).
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) (2002).
Respecifully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
BY
L
DELBERT D.
HASCHEMI
Environmental Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
7////’63
2
;~:-~•.
‘H
“
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OFTHE STATE OF
)
‘
ILLINOIS,
)
CLERK’S OFFICE
Complainant,
)
JUL
3
2003
)
S
STATE OF ILLINOIS
v.
)
PCB NO. 03-117
Polluti0fl Control Board
)
(Enforcement
-
Tires)
BI
STATE TIRE, INC.,
an
)
Illinois corporation,
)
-
)
Respondent.
)
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
Respondent, BI STATE TIRE,
INC., an Illinois corporation, have agreed to the making
of this Stipulation
and Proposal for Settlement
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 bythe 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
not
to contest
its validity in any subsequent proceeding to
implement or enforce its terms.
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.
(2002).
I
II.
AUTHORIZATION
The undersigned representatives for each
party certify
that they are fully authorized bythe
party
whom they represent to
enter into the terms and conditions
of this Stipulation
and to legally
bind them to
it.
III.
—
STATEMENTOF FACTS
A.
Parties
1.
On
February
5,
2003, a Complaint was filed on behalfof the People
of the State of
Illinois by Lisa Mad igan, Attorney General
of the State of Illinois, on her own motion and upon the
request of the Illinois EPA,
pursuant to Section
42(d) and
(e) of the Act, 415 ILCS 5/42(d) and (e)
(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,
41.5
ILCS 5/4 (2002).
3.
At all times relevant to the Complaint, Respondentwas and is an Illinois corporation
that
is authorized
to transact business
in the State of Illinois.
B.
Site Description
At
all
times
relevant to the
Complaint,
Respondent owned
and
operated
a
tire business
facility located at 730
31st Avenue,
Rock
Island, Rock
Island
County,
Illinois
(“Site”).
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the Act
and
Board
Regulations:
1.
On
April
16,
2001,
and
dates prior to
and
thereafter
known
to
the
Respondent,
Respondent operated
its used tire facility in such
a mannerso as to cause or allow the placement
2
ofused orwaste tires in piles outside of its building soas to
fail torn
intain
aisle
space to allowthe
unobstructed
movement
of
personnel
and
equipment
in
violation
of
35
III.
Adm.
Code
848.202(b)(1).
S
S
2.
On
April
16, 2001,
and dates
prior to
and
thereafter
known
to
the Respondent,
Respondent failed to drain water from used orwasted
tires on the day of generation or receipt at
its tire facility in
violation of 35
III. Adm.
Code 848.202(b)(4).
3.
On
April
16, 2001,
and
dates prior to
and
thereafter
known
to
the Respondent,
Respondent stored
used and waste tires at its facility and failed
to alter, reprocess,
convert, cover
or otherwise
prevent used
and
waste tires from accumulating water within fourteen
(14)
days of
receipt in violation of 35
III. Adm.
Code 848.202(b)(5).
4.
On
April
16,
2001,
and dates
prior to
and
thereafter
known to
the
Respondent,
Respondent,
at
its
facility
at which
more
than
500
used
or waste tires are
located,
placed
or
accumulated
tires in such a manner so as to violate 35
III. Adm.
Code 848.202(c)(5).
5.
Respondent caused or allowed the operation of a tire storage facility in violation of
Sections 55(a)(4) and
(e) of the Act, 415
ILCS 5/55(a)(4) and (e) (2002).
D.
Admission of Violations
The
Respondent
represents
that
it
has
entered
into
this
Stipulation
and
Proposal
for
Settlement for the purpose of settling
and
compromising disputed
claims without having to
incur
the expense of contested
litigation.
By entering into this Stipulation
and
Proposal for Settlement
and
complying
with
its
terms,
the Respondent
does
not
affirmatively
admit
the allegations
of
violation
within
the
Complaint,
and
this
Stipulation
and
Proposal
for
Settlement
shall
not
be
interpreted
as including
such admission.
3
S
-
‘
S
,,,
IV.
...
APPLICABILITY
This Stipulation shall apply to and be binding
upon the Complainant and the Respondent,
and any officer or agent 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 or agents to take such
action as
shall
be required
to
comply with the provisions of this Stipulation.
No change in ownership,
corporate status
or operator of the facility shall in any way
alter
the responsibilities of the Respondent under this Stipulation and
Proposal for Settlement.
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
and
Proposal
for
Settlement.
In
appropriate
circumstances,
however,
the
Respondent and
a
contemplated future owner or operator of the facility mayjointly request,
and the Complainant, in
its discretion, may consider modification
of any Order approving
and adopting the terms
of this
Stipulation and Proposal for Settlement to obligate the proposed purchaser oroperator to carry out
future requirements of this Stipulation and Proposal for Settlement in place of, or in addition
to,
the
Respondent.
S
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
III.
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)
(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, ordeposits 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.
thetechnical practicability and economic reasonableness ofreducing
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:
1.
Human health and the environment were threatened
in that failure to manage used
tires correctly may contribute a fire hazard
and a
habitat for disease spreading
mosquitos.
2.
There is social and economic benefit to the facility.
3.
Operation of the facility was suitable for the area
in which it occurred.
4.
Operating the site in compliance with the applicable requirements is both technically
practicable and economically reasonable.
5.
Respondent has subsequently complied with the Act and the Board
Regulations.
VII.
CONSIDERATION OF SECTION 42(h)
FACTORS
Section 42(h) of the Act, 415
ILCS 5/42(h) (2002),
provides
as follows:
5
In
determining the appropriate civil penalty to
be
imposed
under.
.
.
this
Section,
the
Board
is
authorized
to
consider
any
matters
of
record
in
mitigation oraggravationof 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 requirement of this Act and regulations
thereunder
or
to
secure
relief
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 bythe violator and to otherwise aid
in enhancing voluntary
pompliance 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.
In response to these factors, the parties state as follows:
1.
The
alleged
violations
commenced
on
some
date
prior
to
April
16,
2001,
and
continued
to some date prior to August 8, 2002, at which time, an
inspection by the Agency found
the facility in compliance.
Although the violation posed the potential for harm to the environment,
no
actual
harm
was
identified.
Respondent
asserts
the
violations
occurred
during
a
time
Respondent’s operation
was under pressure due to
economic circumstances.
2.
Respondent achieved compliance with the Act, Board
Regulations and
applicable
Federal regulations, after the Illinois
EPA
notified it of its
noncompliance.
3.
There was a likely economic benefit Respondent realized from its
noncompliance
although the benefit is unquantifiable at this time.
4.
Complainant has determined that a penalty of six thousand dollars ($6,000.00) will
serve
to
deter further violations
and
aid
in
future voluntary compliance
with
the Act and
Board
regulations.
6
5.
ToComplainant’s knowledge, Respondenthas no previously adjudicatedviolations.
of the Act.
VIII.
TERMS
OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a penalty in the sum of six thousand dollars ($6,000.00)
as follows:
One thousand dollars ($1 ,000.OQ) within 30 days after the Board accepts
this Agreement;
One thousand
dollars
($1,000.00) 6 months
afterthe Board
accepts
this
Agreement;
One thousand
dollars
($1,000.00)
one
year
after
the
Board
accepts
this
Agreement;
One thousand five hundred dollars ($1,500.00)
18
months after the Board
accepts this Agreement;
and
One thousand five hundred
dollars
($1,500.00) 24 months after the
Board
accepts this Agreement.
The penalty described in this Agreementshall be paid bycertified check 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 check.
A copy of the certified
check or money
order and the transmittal letter shall be
sent to:
Illinois Attorney General’s Office
Environmental Bureau
500 South
Second Street
7
Springfield, IL62706
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2002), 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
5/1 003
(2002).
Interest on
any
unpaid payment shalt begin to accrue from the date the payment is due and continue to accrue until
the date payment is received.
When partial payments 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
Treasurer
of
the
State
of
Illinois,
designated to
the Environmental
Protection Trust
Fund and
delivered to the address
and
in the
manner described above.
3.
Upon Respondent’s failure to pay any installment of the penalty when due, the entire
balance of the penalty remaining unpaid shall without notice be and become immediately due and
payable.
4.
For
purposes
of
payment
and
collection,
Respondent
may
be
reached
at
the
following address:
Bi
State Tire,
Inc.
730
31st Avenue
Rock Island, IL 61201
5.
In
the
event of
default,
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, this Stipulation may
be
used
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 Section 39(i)
and/or 42(h) of the Act, 415 ILCS 5/39(i) and/or 5/42(h)
(2002).
8
C.
Correspondence, Reports and Other Documents
Any
and
all
correspondence,
reports
and
any
other
documents
required
under
this
Stipulation, except for payments pursuant to
Section
IX. of this Stipulation, shall be submitted
as
follows:
Assistant Counsel
Illinois
Environmental Protection
Agency
1021 North Grand Avenue East
P.O.
Box 19276
Springfield, IL 62794-9276
D.
Right of
Entry
-
In addition to any other authority, the Illinois EPA,
its employees and
representatives, and
the Attorney General,
her agents and representatives, shall have the right of entry into and
upon
the Respondent’s facility which is the subject of this Consent Order, at all reasonable times for the
purposes
of
carrying
out
inspections.
In
conducting
such
inspections,
the
Illinois
EPA,
its
employees and representatives, and theAttorney General, her employees and representatives may
take photographs,
samples,
and
collect information,
as they deem necessary.
E.
Cease
and
Desist
The
Respondent
shall
cease
and
desist
from
future
violations
of
the
Act
and
Board
Regulations, including
but not limited to those sections of the Act and Board
Regulations that were
the subject matter of the Complaint as outlined
in
Section
111.0.
of this Stipulation.
F.
Release from Liability
In
consideration
of
the
Respondent’s
payment
of
the
$6,000.00
penalty,
upon
the
completion
of all activities required hereunder, 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 anyfurther liability orpenalties for violations
of the
Act
and
Board
Regulations that
were
the
subject
matter
of
the Complaint
herein.
The
9
release
set forth
above does
not extend
to any
matters
other than
those
expressly specified
in
Complainant’s Complaint filed on
February 5, 2003.
The Complainant reserves, and this Consent
Order 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.
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to
sue for any claim or cause of action, administrative orjudicial, civil or criminal, past orfuture,
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, or entity other than the Respondent.
G.
Enforcement of Consent 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.
Respondentagrees that notice of any subsequent proceeding to enforce and 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 notapprove 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
10
be severable,
and
should
any provision
be
declared bya .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.
WHEREFORE, Complainant and Respondent request that the Board adopt and accept the
foregoing
Stipulation .and
Proposal
for Settlement as written.
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS,
LISA MADIGAN
Attorney General,
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
Dated:____________
By:
THOMAS DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PR~1~EçTION
AG
Dated:
-
/ 0
-
0~
By:(,,/JOS~PH
E.
SVOBODA
Chief
Legal Counsel
Division of Legal
Counsel
BI
STATE TIRE,
INC.
An
Illinois
Dated~/’~
c~?
President
11
