BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
Complainant,)
V.
)
PCB3
05-95
WIENMAR, INC., an Illinois corporation,)
(Enforcement
-
Air)
Respondent.
NOTICE OF FILING
TO:
Jeffery D. Jeep
Jeep & Blazer, L.L.C.
1749 South Naperville Road
Suite 102
Wheaton,
IlL 60187
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that on the 19' day of September, 2005, I filed with the Clerk
of the Illinois Pollution Control Board a Stipulation and Proposal for Settlement, and Motion to
Request Relief From Hearing Requirement, copies of which are attached hereto and hereby
served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
By:
vBECCA A. BURLIINGHAM
Senior Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, Illinois
60601
(312) 814-3776
Date: September 19, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
Complainant,)
V.
)
PCB
05-95
WrENMAR, INC., an Illinois corporation,
)
(Enforcement
-
Air)
Respondent.)
MOTION TO REQUEST RELIEF
FROM HEARING REOUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and requests relief from the hearing
requirement in the above-captioned matter.
In support thereof, the Complainant states as
follows:
1.
On November
16, 2004, a Complaint was
filed
with the Pollution Control Board
("Board") in this matter.
September 19, 2005, a Stipulation and Proposal for Settlement was
filed with the Board.
2.
Section 3 1(c)(2) of the Illinois Environmental Protection Act ("Act"),
415
lICS
5/31(c)(2), effective August 1, 1996, allows the parties in certain enforcement cases to request
relief from the mandatory hearing requirement where the parties have submitted to the Board a
stipulation and proposal for settlement.
Section 31(c)(2) 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).
Unless the Board, in its discretion, concludes that a hearing will be held, the Board shall
cause notice of the stipulation, proposal and request for relief to be published and sent in
1
the same manner as is required for hearing pursuant to subdivision (I) of this subsection.
The notice shall include a statement that any person may file a written demand for hearing
within 21 days after receiving the notice.
If any person files a timely written demand for
hearing, the Board shall deny the request for relief from a hearing and shall hold a hearing
in accordance with the provisions of subdivision (1).
3.
No hearing is currently scheduled in the instant case.
4.
The Complainant requests the relief conferred by Section 3 1(c)(2) of the Act.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, requests relief from the requirement of a
hearing pursuant to 415 ILCS 5/31(c)(2), effective August 1, 1996.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attoriiey General of the
State of Illinois
REBECCA A. BURLINGHAM
L
Senior Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, Illinois
60601
(312) 814-3776
2
BEFORE THE ]ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,)
Complainant,
)
PCB
05-95
V.
)
(Enforcement
-
Air)
WIENMAR, TNC., an Illinoiscorporation,)
d/b/a MARBLE WORKS,)
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 WIENMAR, INC., an Illinois corporation, dlb/a MARBLE WORKS ("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 hereinr represents a fair summary of the evidence and testimony
which would be introduced by the parties if a hearing were held.
The parties fuirther 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 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 and to
legally bind them to it.
III.
STATEMENT
OF
FACTS
A.
Parties
I
.
On November 16, 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(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, Respondent was and is an Illinois
corporation in good standing.
2
B.
Site Description
I1.
At all times relevant to the Complaint, Respondent Wienmar, Inc. owned and/or
operated a facility located at 1601 La Fox, South Elgin, Kane County, Illinois, where it
manufactures niolded resin products such as sinks, counter tops and tubs ("facility").
Respondent operates the facility under the assumed name of Marble Works.
In February 2002,
Respondent moved its operations from Sundown Road, South Elgin, to the current location at
1601 La Fox, South Elgin.
2.
Operations at the facility consist of marble casting, gelcoat spray lay-up, resin
storage and miscellaneous cleaning and mold preparation.
Emission units at the facility include
a gelcoat spray booth, the marble casting operation and resin storage tanks.
C.
Allegations
of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
Count I:
Operating Major Stationary Source Without a CAAPP Permit, in
violation of Section 39.5(6)(b) of the Act, 415 ILCS 5/39.5(6)(b)(2002),
and 35 Ill. Adm. Code 270.30 1(b).
Count II:
Failure to Comply With New Source Review Requirements, in violation
of Section 9(a) of the Act, 415 ILCS
5/9(a)(2002),
and 35 Ill. Adm. Code
203.201.
Count HI:
Failure to Seek MACT Determination, in violation of Section 9. 1(d)(1)
of the Act, 415 ILCS 5/9. 1(d)(1)(2002), and 42 USC 7412(g)(2)(B).
Count IV:
Failure to Comply With Emission Reduction Market System
Requirements, in violation of Section 9.8(b) of the Act, 415 ILCS
5/9.8(b).
3
Count V:
Violation of Construction/Operating Permit Conditions and Regulatory
Requirements, in violation of Section 9(b) of the Act, 415 ILCS
5/9(b)(2002), Conditions 3,
7, 10, 20(b), 13,
16(a) and 22 of Joint
Construction and Lifetime Operating Permit Number 00120001, and 35
Ill. Adm. Code 218.301, 218.672(a)(1) and 218.672(a)(4)(A).
Count VI:
Failure to Timely Submit Annual Emissions Reports, in violation of
Section 9(a) of the Act, 415 ILCS 5/9(a)(2002), and
35
Ill. Adm. Code
201.302(a), 254.132(a) and 254.137(a).
D.
Admission of Violations
The Respondent neither admits nor denies the violation(s) alleged in the Complaint filed
in this matter and referenced herein.
E.
Compliance Activities to Date
1
.
On March 3, 2003, Respondent applied to the Illinois EPA for a Clean Air Act
Permit Program (CAAPP) permit and submitted an Emission Reduction Market System (ERMS)
baseline application.
2.
During the period January 1, 2004 through November 16, 2004, Respondent
switched to utilizing a non-atomized gel coat and demonstrated that its emissions are now less
than 8 pounds per hour.
3.
During the period January 1, 2004 through November 16, 2004, Respondent
began keeping records documenting its monthly and annual emissions and usages by the
15t1h
day
of each month, as required by its Lifetime Operating Permit Number O0l2000lpermit.
4.
On February 18, 2004, Respondent submitted to the Illinois EPA an Annual
Emissions Report that accurately reflected the facility's 2002 emissions.-
4
5.
On February 18, 2004, Respondent submitted to the Illinois EPA a calendar year
2001 Annual Emissions Report for the facility, which was then located on Sundown Road, South
Elgin.
6.
On March 9, 2005, the Illinois EPA, Division of Air Pollution Control, issued to
Respondent a CAAPP Application Completeness Determination and Source Fee Determination
for the facility stating that the March 3, 2003 CAAPP Application i
s complete.
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 III. Adm. Code, Subtitles A through H.
5
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, 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 ftom such
pollution source; and
5.
any subsequent compliance.
In response to these factors, the parties state the following:
1
.
Complainant alleges that Respondent violated emission and usage limits in its
permit for a period of two years.
Further, Respondent failed to timely file required reports, a
CAAPP permit application and an ERMS baseline application.
Respondent also constructed a
major/source without demonstrating compliance with the Board's New Source Review (NSR)
regulations.
The permit limits, reporting requirements, CAAPP, ERMS and NSR are all of
programmatic significance to the Illinois EPA.
2.
There is social and economic benefit to the facility.
3.
Operation of the facility is suitable for the area in which it occurred.
6
4.
Obtaining a CAAPP permit,
compliance with NSR
regulations, compliance with
ERMS requirements, compliance with permi tkd and regulatory emission and usage limits,
compliance with Maximum Achievable Control Technology (MACT) requirements, submission
of required reports and certifications, maintenance of required records, and timely submission of
complete and accurate Annual Emissions Reports are both technically practicable and
economically reasonable.
5.
Respondent has subsequentiy complied with the Act and the Board Regulations
and as previously noted in subparagraphs (5) and (6) of Section IlIIE. (above), Respondent has
submitted a CAA.PP Application which the Air Pollution Control Division of the Illinois EPA
has determined to be administratively complete.
VIIL
CONSIDERATION OF SECTION 42(b) FACTORS
Section 42(h) of the Act, 415 1105 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:
I .
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;
7
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 performn.
In response to these factors, the parties state as follows:
1
.
Complainant alleges that Respondent violated emission and usage limits in its
permit for a period of two years.
Further, Respondent failed to timely file required reports, a
CAAPP permit application and an ERMS baseline application.
Respondent also constructed a
major source without demonstrating compliance with the Board's New Source Review (NSR)
regulations.
The permit limits, reporting requirements, CAAPP, ERMS and NSR are all of
programmatic significance to the Illinois EPA.
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.
No economic benefit beyond avoided site fees can be calculated.
Respondent has
already paid $2,500.00 in avoided air pollution site fees to the Illinois EPA.
.4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Fifty-Five Thousand Dollars
($55,000.00)
will serve to deter fur-ther violations and aid
in future voluntary compliance with the Act and Board regulations.
8
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.
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1
.
The Respondent shall pay a civil penalty in the sum of Fifty-Five Thousand
Dollars ($55,000.00) within thirty (30) 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
thirty (30) days from the date the Board adopts and accepts this Stipulation, in a manner
prescribed below.
The penalty described in this Stipulation shall be paid by certified check,
money order or electronic funds transfer payable to the Illinois EPA, designated to the Illinois
Environmental Protection Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
9
The name and number of the case and Respondent's Federal Employer Identification Number
(FERN), 36-3621884, 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:
Rebecca A. Burlingham
Assistant Attorney General
Environmnental Bureau
188 W. Randolph St., 20th 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
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
5/1003
(2002).
Interest on any unpaid payment shall begin to accrue from the date the payment is due and
continue to accrue until the date payment is received.
When partial payment(s) are made, such
partial payment shall be first applied to any interest on unpaid payment then due and owing.
All
interest on payment owed shall be paid by certified check, money order or electronic funds
transfer, payable to the Illinois EPA, designated to the Illinois Environmental Protection Trust
Fund and delivered to the address and in the manner described above.
3.
For purposes of payment and collection, Respondent may be reached at the
following address:
1 0
WIENMAR, INC. d/b/a Marble Works
Attention:
Tom Wienckowski, President
1601 La Fox St.
South Elgin, IL
60177
4.
In the event of default of this Section VIII.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 V1IIID, 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)
(2002).
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.
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 III.C
("Allegations of Non-Compliance") of this Stipulation.
D.
Release from Liability
In consideration of the Respondent's payment of the $55,000.00 penalty and any
specified costs and accrued interest, commitment to Cease and Desist as contained in Section
VIII.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 November 16, 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
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 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 3.3 15 of the Act, 415 ILCS 5/3.3 15, or entity other than the Respondent.
12
E.
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 Stipulation, at all reasonable times for
the purposes of carrying out inspections.
In conducting such inspections, the Illinois EPA, its
employees and representatives, and the Attorney General, her employees and representatives
may take photographs, samples, and collect information, as they deem necessary.
F.
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.
13
WHEREFORE, Complainant and Respondent request ffiat 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
B:
ROSEMARLIE CAZEAU,
jief
DATE:7-1
-0
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
r/u*<
DATE:
;7 a
/
2
WILLIAM D. INGE
L
Acting Chief Legal Counsel
WIENMAR, INC., dlb/a MARBLE WORKS
BY:'
DAE
)7
Name: 7110g4s
YtlCA/Cto&'sA/<
yA.
Title: A5-1hAAC
14
CERTIFICATE OF SERVICE
I,
REBECCA A. BURLIINGHAM,
an Assistant Attorney General in this case, do certify
that I caused to be served this 19'
day of September, 2005, the foregoing Stipulation and
Proposal for Settlement, Motion to Request Relief From Hearing Requirement and Notice of
Filing upon the person listed on said Notice by depositing same in an envelope, first class
postage prepaid, with the United States Postal Service at 188 West Randolph Street, Chicago,
Illinois, at or before the hour of 5:00 p.m.
EBECCA A. BURIGA
