STATEMENT OF FACTS

ILLINOIS POLLUTION CONTROL BOARD

August

6,

1987

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

)

Petitioner,

v.

)

 PCB 86—134

NABISCO BRANDS,

 INC.,

A DELAWARE CORPORATION,

Respondent.

OPINION AND ORDER OF THE BOARD

 (by J. Marlin):

This matter comes before the Board on a Complaint filed

on

September

5,

 1986 by the Illinois Environmental Protection Agency

(Agency)

 against Nabisco Brands,

 Inc.

 (Nabisco).

 The Complaint

centers around

 the operation

of

 two incinerator/waste heat

boilers at Nabisco’s plant located

 at 7300 South Kedzie Avenue

in

Chicago.

A hearing was held

in

 this matter on May

19,

1987

in

Chicago; no members

 of the public were present.

 At hearing, the

parties submitted

 a Stipulation and Proposal for Settlement

(hereinafter cited

 as Stip.).

 The copy of

 the Stipulation and

Proposed Settlement presented at hearing was signed only by

Nabisco.

 A substantively identical copy, signed by both parties,

was filed with the Board on July

 21, 1987.

For the purpose

 of the settlement, the parties stipulate to

a Statement of Facts which recites

 the following.

 Nabisco

engages

in

 the manufacture of cookies, biscuits, and crackers.

Nabisco’s facilities

 include two incinerator/waste heat

boilers.

 Between June

30,

 1983 and the filing of the Complaint,

Nabisco has allowed, on

 a limited basis,

 the operation of its

incinerator/waste heat boilers without a valid Agency operating

permit,

 in violation of Section

 9(b)

 of the Act and Section

201.143

of

 the Air Pollution Regulations of

 the Pollution Control

Board.

 (Stip.,

p.

2).

Also,

 according to the stipulated Statement of Facts,

between March 30,

 1983 and the filing of the Complaint, Nabisco

has on

 a number

 of occasions,

 including days on which three

 tests

were conducted, caused

 or allowed particulate emissions from its

incinerator/waste heat boiler system to exceed the allowable

limit of 0.1 gr/scf.,

 in violation of Section 9(a)

 of the Act and

Section 212.181(d)

 of the Air Pollution Regulations

 of the

Pollution Control Board.

 (Stip.,

p.

3).

80—69

2

The parties also stipulate that Nabisco has,

 since the

filing of the Complaint,

 cured the excess particulate and any CO

emission violations

 that may have existed and on January

 6, 1987

and submitted the appropriate permit applications

 to the

Agency.

 On April

6,

 1987, Nabisco was granted

 a permit to

operate

 its incinerator/waste heat boiler

 system.

The terms of the Proposed Settlement include

 that Nabisco

will abide by the conditions of

 all operating permits issued by

the Agency and that Nabisco will cease

 and desist from any and

all violations of the Act and regulations promulgated

thereunder.

 In addition, Nabisco agrees

 to pay

 a penalty of

$7,500 into the Environmental Protection Trust Fund.

The Board notes

 that the terms of the Proposed Settlement

state that “the

 Agency contends and the Respondent neither

admits nor denies

 the facts as set out in the Complaint

constituting the...violations

 of the Act and Board

regulations.”

 Such

 a statement appears

 to contradict

the

Statement of Facts portion of the agreement in which Nabisco

stipulates

to

 the violations.

It

 thus seems

 that the parties are

leaving the question of whether

 or not

 a violation occurred to

the Board’s discretion.

 Since Nabisco stipulates

 to the

violations,

 the Board

 finds Nabisco in violation

 of the Act and

 regulations.

In evaluating

 this enforcement action and proposed

settlement agreement,

 the Board has taken into consideration all

the facts and circumstances in light of the specific criteria

delineated in Section

 33(c)

 of the Act and finds the Stipulation

and Proposed Settlement acceptable under

 35 Ill.

 Adm. Code

103.180.

 Accordingly,

 the Board orders Nabisco to comply with

the Order

 set forth herein.

This Opinion and Order constitutes

 the Board’s findings

of

fact and conclusions of

 law in this matter.

ORDER

It

 is the Order

 of the Illinois Pollution Control Board

that:

1.

 The Board hereby accepts the Stipulation and Proposed

Settlement executed by Nabisco Brands,

 Inc.

 (Nabisco) and the

Illinois Environmental Protection Agency and filed with the

Board on July

21,

 1987.

 The terms and conditions

 of the

attached Stipulation and Proposed Settlement are incorporated

into and made

 a part of this Order

 to the extent that they

are consistent with the provisions

 of this Order.

2.

 Nabisco has violated the following sections of

 the Illinois

Environmental Protection Act

 (Act)

 and regulations

promulgated thereunder:

80—70

3

Count

I:

 Section 9(b)

of

 the Act

 (Ill.

 Rev. Stat.

 1985,

ch.

111

1/2

par.

 1009(b))

and

 35 Ill. Adm. Code 201.143;

Count

II:

 Section

 9(a)

 of the Act

 (Ill.

 Rev.

 Stat.

 1985,

ch.

111

1/2

 par.

 1009(a)),

 and 35

 Ill. Adm. Code

212.181(d).

3.

 Nabisco shall,

 by certified check

 or money order payable

to

the State

 of Illinois and designated for deposit into the

Environmental Protection Trust Fund, pay

 a penalty of Seven

Thousand Five Hundred Dollars

 ($7,500).

 Nabisco shall pay

this penalty within thirty

 (30) days

 of the date of

 this

Order

to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

Springfield,

 IL 62706

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk

of

 the Illinois Pollution Control

Board,

 hereby cer,ti~y~that the above Opinion and Order was

adopted on the

~

 day of

 1987,

by

 a vote

of

Dorothy

M.

 unn, Clerk

Illinois Pollution Control

 Board

80—71

STATE OF ILLINOIS

)

COUNTY OF COOK

ILLINOIS ENVIRON~ENTAL PROTECTION

AGENCY,

NABISCO BRANDS,

 INC.,

 a Delaware

Corporation,

NOTICE OF FILING

TO: John Cloney

Hearing Officer

212 Elinore

Park Ridge,

 Illinois 60068

Burton

H.

 Brody

Chief Litigation Counsel

Nabisco Brands,

 Inc.

625 Madiscn Avenue

New York,

 New York 10022

Eugene E. Gozdecki

Gozdecki, Zido

 & Behnke

221

North

LaSalle Street

Suite 2200

Chicago, Illinois 60601

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

the Pollution Control

 a Stipulation and Proposal For Settlement,

in the above-cationed matter a copy of which is hereby served

upon you.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

Dated:

 July 21,

1987

NEIL F. HARTIGA.N

Attorney General

State of Illinois

By:

i~QYC~

GERALD T. KAR’~

Assistant Attorney General

Environmental Control Division

100 West Randolph Street,

 13th Fir.

Chicago,

 Illinois 60601

(312)

 917—5020

80:72

BEFORE THE ILLINOIS POLLUTION CONTROL BOA~D

Complainant,

)

PCB 86—134

Respondent.

STATE

ILLINOIS

)

COUNTY OF COOK

(

~98~

JL~

BEFORE

 THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS

ENVIRONMENTAL

PROTECTION

)

AGENCY,

)

Complainant,

)

v.

)

 PCB 86-134

NABISCO

BRANDS,

INC.,

a

Delaware Corporation,

)

Respondent,

)

STIPULATION AND

PROPOSAL

FOR

 SETTLEMENT

Now

Comes

Complainant,

Illinois

Environmental

Protection

Agency,

by

 its Attorney,

 Neil

F.

 Hartigan, Attorney General

 of the State

of

Illinois,

and

Respondent,

Nabisco

Brands,

Inc.,

Delaware

corporation

its attorney, Eugene

 E. Gozdecki,

 and do hereby

 submit

 this Stipulation

and Proposal

for

Settlement.

The

parties

agree

that

the

statement

facts contained herein represents

 a fair summary of the evidence and

testimony which would

be

 introduced

 by the parties if

a

 full 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 this or any other

proceeding except

 to enforce the terms hereof

 by by the parties to this

agreement.

 The agreement shall

 be null and void unless

 the Illinois

Pollution Control Board (hereinafter “Board”) approves and disposes

of

this matter on each

 and every one of the terms

 and conditions

 of the

settlement

 set forth herein.

—1—

30—73

STATEMENT

FACTS

I.

 Complainant,

 Illinois Environmental

 Protection Agency

(hereinafter “Agency”),

is

 an administrative agency established in the

executive branch of the State government

 by Section

4

 of the Illinois

Environmental Protection Act (hereinafter “the Act”), Ill.Rev.Stat.,

 1985,

ch.

 111-1/2,

 par.

1001

 et mg.,

 and charged,

 inter alia, with the duty of

enforcing the Act, pursuant to Title VIII thereof and recovering civil

penalties pursuant to

 Title XII thereof.

2.

 Respondent Nabisco Brands,

 Inc.,

 (hereinafter

 “Nabisco”),

is

a Delaware corporation

with

 its main corporate offices located

 in New

Jersey.

Nabisco

has

all

times

pertinent

hereto

transacted

business

in the State of Illinois at

 a facility located

 at 7300 South Kedzie

Avenue, Chicago, Cook County,

 Illinois.

4.

 Nabisco engages

 in the manufacture of cookies,

 biscuits and

crackers

at

 its facility.

 Located

 at Nabisco’s facility are two

incinerator/waste heat boilers.

Between

June

30,

1983

and

the

filing

the

complaint

this

action,

 Nabisco has

 allowed,

on

 a limited basis, the operation of

its

incinerator/waste heat boiler without

 a valid Agency operating permit,

in

violation of Section 9(b) of the Act and Section 201.143 of the Air

Pollution Regulations of the Pollution Control

 Board.

-2-

80—74

6.

 Between March

30,

 1983 and the filing

 of the complaint

in

this action, Nabisco has on

 a number of occasions,

 including days

 on which

three tests were conducted, caused or allowed particulate~.emissions

~_—

-\‘,

from its incinerator/waste heat boiler system to exceed the allowable

limit of 0.1 gr/scf.,

 in violation of Section 9(a) of the Act and Section

212.181(d)

 of the Air Pollution Regulations of the Pollution Control

Board.

7.

 On September

5,

1986

 a complaint was

 filed alleging

 the above

violations.

8.

 Respondent has,

 since the filing of the complaint in this

action,

 cured the excess particulate and

 any CO emission violations that

may have existed and on January

6,

 1987 submitted the appropriate

 perrr.it

applications to

 the Agency.

April

1987

Nabisco

was

granted

permit

operate

its

incinerator/waste heat boiler

 system.

PROPOSAL

FOR

 SETTLEMENT

result

the

settlement

discussions

between

the

parties

and

of actions taken or to

be

 taken by Respondent,

 the parties believe that

the public interest will

 be best served

 by resolution of this enforcement

action under the terms

 and conditions provided herein.

 This proposal

for

settlement

 is expressly conditioned upon and effective only with the

-3-

80—75

approval thereof

in

 all respects by the Board.

 All statements

 contained

herein are agreed

 to for purposes

 of settling this action only and

 shall

be

 null

 and void

 and of no effect

 in any further proceeding

or

 cause of

action

 if the Board does not approve this proposal

 for settlement

in

its

entirety.

TERMS OF SETTLEMENT

Nabisco and the Agency

 have agreed to the following Terms

of

Settlement.

 These terms

 shall

be

 in full

 settlement of the action

 filed

herein

 by the Agency and Respondent’s liability for all violations alleged

in the Complaint.

1.

 The Agency contends and Respondent neither admits nor denies

the facts

 as set

 out in the Complaint constituting

 the following

violations

 of the Act and the Board Regulations:

Count

I:

 Section 9(b) of the Act

and 35

 Ill. Adm. Code 2~2i_~~LV).

 2_~/

/*3

Count

II:

 Section 9(a) of the Act

and 35 Ill.

 Adm.

 Code 212.181(d).

2.

 Respondent agrees to abide

by

 all terms and conditions of all

operating permits

 issued by the Agency.

3.

 Respondent agrees to cease and desist from any and

all

violations

 of the Illinois Environmental

 Protection Act and Rules and

Regulations of the fllinois Pollution Control

 Board.

89—76

4.

 The parties enter into this Stipulation

 and Proposal

for

Settlement and Respondent

 agrees

 to pay

 a penalty specified in this

paragraph

 in order

to

 avoid the substantial

 costs,

 inconveniences

and

uncertainties

 of further litigation.

 In order to resolve this dispute and

as

 a condition of settlement, Respondent agrees

 to pay

 a penalty of seven

thousand five hundred dollars

 ($7,500.00)

 into the Environmental

Protection Trust

 Fund within

 30 days from the date on which the Board

adopts

 a final

 order approving, accepting

 and incorporating this

Stipulation and Proposal

 for Settlement.

 The Agency deems the payment to

be appropriate to

aid

 in the enforcement of the Act under the

circumstances of this

 case.

 Factors bearing

 on this penalty amount

include the prolonged period prior to achieving compliance

 by Nabisco

and

the limited amount of time that the incinerator/waste heat boilers were

operated for non-testing purposes.

WHEREFORE, Complainant and Respondent jointly request that the

Board adopt and accept the foregoing Stipulation and Proposal for

Settlement

 as written.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

 NABISCO BRANDS,

 INC.

By:

 By:________

 Burton

H.

 Brody

DAT’~6’~’

,i:27

 ,;2~

 Chief Litigation Counsel

80—77

GERALD

KARR,

 an attorney hereby certify that

 I have

caused true and accurate copies of the attached Stipulation and

Proposal For Settlement to be served upon,

John Cloney

 Eugene

 E. Gozdecki

Hearing Officer

 Gozdecki,

 Zido

 & Behnke

212 Elinore

 221 North LaSalle Street

Park Ridge,

 Illinois 60068

 Suite 2200

Chicago, Illinois 60601

Burton H.

 Brody

Chief Litigation Counsel

Nabisco Brands,

 Inc.

625 Nadison Avenue

New York, New York 10022

by causing said copies to be mailed first class ~ai1 postage pre-

paid to the addresses indicated above,

 from 100 West Randolph

Street,

 Chicago, Illinois 60601,

 on July 21,

 1987.

GERALD T.

 KARR

80—78