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RECEIVED

BEFORE THE ILL

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~

BOARD

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

SEP

1 2 2002

by JAMES E.

RYAN,

Attorney

)

STATE OFILLINOIS

General of the State of Illinois

)

Pollution ControlBoard

Complainant,

No. PCB 02-185

v.

FERRAPJ~

PAN

CANDY COMPANY,

INC.

an Illinois corporation,

Respondent.

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on September

12,

2002 we filed with

the Pollution Control Board the following

Stipulation

and

Proposal for Settlement,

a

true and correct copy of which is

attached and hereby served upon you.

Respectfully submitted,

JAMES E. RYAN

Attorney General

State of Illinois

BY:

__________

JOEL

J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago,

Illinois

60601

(312)

814-6986

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RECEIVED

SERVICE LIST

CLERK’S OFFICE

Myles Berman,

Esq.

SEP 1 2 2002

Altheimer

& Gray

Suite 3800

STAI’EOFIWNOIS

10 South Wacker Drive

Pollution ControlBoard

Chicago,

IL 60606

Maureen Wozniak,

Escj.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

Illinois

62702

C:\Joel

-

Case nocuments\Ferrara Pan\Notice

of Filing

-

stip.wpd

-

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•

©~j~filN1I~\fl

R?ECEJVED

BEFORE THE ILLIN

U~

BOARD

CLERK’S

OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

SEP 1 2 2002

by JAMES E.

RYAN, Attorney

General of the State of Illinois

)

STATEOFILLINOIS

Pollution

Control Board

Complainant,

No. PCB 02-185

v.

FERRARA

PAN

CANDY

COMPANY,

INC.

an

Illinois

corporation,

Respondent.

STIPULATION AND PROPOSAL FOR SETTLEMENT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

by JAMES

E.

RYAN, Attorney General

of the State of Illinois, on his own

motion, and at the request of the Illinois Environmental

Protection Agency

(“Illinois EPA”),

and Respondent,

FERRP~RAPAN

CANDY COMPANY,

INC.,

(“FERRARA”),

an Illinois corporation, do

hereby submit this Stipulation and Proposal for Settlement

(“Stipulation”)

to the Illinois Pollution Control Board

(“Board”)

for approval.

The parties agree that the Complainant’s statement

of facts contained herein is agreed to only for the purposes of

settlement.

The parties further stipulate that this Stipulation

and any Board Order accepting the same may be used in any future

enforcement action as evidence of the calculated economic benefit

from noncompliance identified in Section IX.2 below and in any

subsequent enforcement action against FERRAPA as evidence of a

past adjudication of violations of the Act for purposes of

Section 39(h)

of the Act,

415 ILCS 5/39(h) (2000).

This stipulation may also be used in any permitting action for

the purposes of Section 39(i)

of the Act,

415 ILCS 5/39(i) (2000).

This Stipulation shall be null and void unless the Board approves

and disposes of this matter on each and every one of the terms

and conditions of the settlement set forth herein.

---

I.

JURISDICTION

The Board has jurisdiction of the subject matter herein and

of the parties consenting hereto pursuant to the Act,

415 ILCS

s/i

et seq.

(2000)

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.

APPLICABILITY

This Stipulation shall apply to and be binding upon the

Complainant and Respondent,

and any agent,

director,

officer,

employee or servant

of Respondent, as well as the Respondent’s

successors and assigns.

Respondent shall not raise as a defense

to any enforcement action taken pursuant to this settlement the

failure of his agents,

directors,

officers,

servants or employees

to take such action as shall be required to comply with the

provisions of this settlement.

A.

PARTIES

1.

The parties to this Stipulation are Complainant,

PEOPLE

OF THE STATE OF ILLINOIS, by JAMES

E. RYAN, Attorney General of

the State of Illinois,

and Respondent,

FERRARA.

2

---

2.

The subject Complaint was brought by the Attorney

General on his own motion and upon the request of the Illinois

EPA pursuant to the terms and provisions of Section 31 of the

Act,

415 ILCS 5/31

(2000)

3.

Respondent

is an Illinois corporation in good standing.

4.

Respondent

is located at 7301 West Harrison Street,

Forest Park,

Cook County,

Illinois 60130(”facility”)

5.

Respondent FERRARA manufactures confectionery.

6.

Complainant filed its Complaint on April

23,

2002.

B.

SOURCE DESCRIPTIONS

Respondent operates various pans,

kettles,

roasters,

grinders,

and polishers; packaging equipment; and five candy

printing presses during the manufacturing of the confectionery

products.

C.

VIOLATIONS

This Stipulation is intended to resolve the allegations in

the Complaint filed in this matter.

The Complaint alleges

violations of the Act and of the Board’s Air Pollution

Regulations, and the Code of Federal Regulations,

outlined as

follows:

COUNT

I

Violation of FESOP condition 2a in

violation of Section

9(b)

of the Act,

415 ILCS 5/9(b) (2000)

,

and FESOP

73010040:

COUNT II

Violation of FESOP condition

5 in

violation of Section 9(b)

of the Act,

415 ILCS 5/9(b) (2000)

,

and FESOP

73010040.

COUNT III

Violation of FESOP condition 10

in

violation of Section 9(b)

of the Act,

415 ILCS 5/9(b) (2000)

,

and FESOP

73010040.;

3

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COUNT IV

Construction of Emissions Sources

without a Permit in violation

of Section

9(b)

of the Act,

415 ILCS 5/9(b) (2000),

and 35

Ill. Adm.

Code 201.142;

COUNT V

Operation of Emissions Sources without a

Permit in violation of Section 9(b)

of

the Act,

415 ILCS 5/9(b) (2000), and 35

Ill. Adm.

Code 201.143 and 201.144;

COUNT VI

Failure to Submit Timely CAAPP

Application in violation of Section

39.5(2)

of the Act,

415 5/39.5(a)

(2000), and 35

Ill. Adm. Code

270.301(b);

COUNT VII

Failure to Submit ERMS Application in

violation of Section

9(a)

of the Act,

415 ILCS 5/9(a)

(2000) and 35

Iii. Adm

Code 205.310;

COUNT VIII

New Source Review in violation of

Section 9(a)

of the Act,

415 ILCS 5/9(a)

(2000),

and 3S

Ill.

Adm.

Code 203.201;

and

COUNT IX

Failure to reduce uncontrolled VOM

emissions in violation of Section 9(a)

of the Act,

415 ILCS 5/9(a) (2000),

and

35 Ill. Adm.

Code 218.986.

V.

EXPLANATION

OF PAST FAILURES

TO COMPLY

Respondent claims that they were misguided as to which

statutes and regulations they were obligated to comply with.

VI.

FUTURE

PLANS

OF COMPLIANCE

Respondent has diligently implemented control equipment

which has effectively brought their emission levels into

compliance with all applicable

laws and regulations.

IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE

Section 33(c)

of the Act,

415 ILCS 5/33(c)

(2000), provides

as follows:

4

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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 state as follows:

1.

Complainant contends that the impact to the public as a

result of the allegations against Respondent

in the Complaint was

that Respondent caused air pollution and emitted more VOM than

the Illinois Pollution Control Board

(“Board”) Air Pollution

Regulations allow major sources and confectionery manufacturing

sources.

2.

The parties agree that Respondent’s operation is of

social and economic value.

3.

The parties agree that Respondent’s facility is

suitable to the area where

it

is located.

4.

The parties agree that compliance with the requirements

of the Act and Board regulations is both technically practicable

and economically reasonable.

5

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5.

Respondent has diligently implemented control equipment

which keeps

its VOM emissions below that level allowed by

regulation.

CONSIDERATION OF SECTION 42(h)

FACTORS

Section 42 (h)

of the Act,

415 ILCS 5/42 (h) (2000)

,

provides

as follows:

In determining the appropriate civil penalty to be

imposed under subdivisions

(a)

,

(b) (1)

,

(b) (2)

,

(b) (3)

or

(b) (5)

of 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.

In response to these factors the parties state as follows:

1.

The gravity of the alleged violations

is significant in

that the applicable Board Regulations were not complied with

which resulted in air pollution.

The duration is equally as

-

significant,

as the violations continued for over a period of

four

(4)

years.

2.

Respondent has complied with the Act by implementing

6

---

cbntrol equipment which reduces VOM emissions to the level

allowed by Board Regulation,

and by meeting all reporting

deadlines.

3.

Complainant alleges that Respondent derived economic

benefit of three hundred seventy-one thousand six hundred eighty-

eight dollars

($371,688.00)

by not implementing control equipment

before the violations began in 1996.

4.

Complainant contends that a civil penalty reflecting

the economic benefit of the Respondent’s noncompliance

is

adequate to deter Respondent from future violations.

5.

Complainant is unaware of any previously adjudicated

violations by Respondent.

TERMS OF SETTLEMENT

1.

Respondent neither admits nor denies that the

violations occurred as alleged in Counts

I thru IX of the

Complaint.

2.

Respondent shall pay a civil penalty of three-hundred

seventy-one thousand six hundred eighty-eight dollars

($371,688.00) within one year of the date of entry of this

Stipulation and Proposal for Settlement.

The penalty reflects an

economic benefit of approximately three-hundred seventy-one

thousand six hundred eighty-eight dollars

($371,688.00)

which

represents the calculated economic savings from noncompliance with

Sections 9(a)

and

(b),

9.8(b),

39.5(6)(b)

of the Act and 35

Ill.

Adm.

Code 201.142, 201.143,

203.201,

20S.310(a),

218.296, and

270.301(a)

that would have been sought by the Complainant in this

litigation.

Payments shall be made in twelve equal monthly

7

---

ihstallments

of thirty thousand nine hundred seventy-four dollars

($30,974.00)

.

Payments shall become due on the

1st

day of the

month, beginning with the month following entry of this

Stipulation.

Payments shall be made by certified check or money

order payable to the

“Illinois Environmental Protection Agency”

and designated to the Environmental Protection Trust Fund.

The

certified check or money order shall include Respondent’s federal

identification number

(36-3331581)

on it and be sent by first

class mail to:

Illinois Environmental Protection Agency

Fiscal Services Section

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

Illinois 62794-9276

A copy of the check shall be sent to:

Joel Sternstein

Assistant Attorney General

Environmental Bureau

188 West Randolph Street,

20th

Floor

Chicago,

Illinois 60601

On the checks or money orders,

Respondent shall include the

case name and case number.

3.

For the purposes of collection,

inquiries can be

addressed to Respondent’s attorney at:

Mr. Myles Berman

Altheimer

& Gray

10 South Wacker Drive

Chicago Illinois 60606-7482

(312)

715-4643

4.

Pursuant to Section 42(g)

of the Act,

415 ILCS 5/42(g)

(2000),

interest shall accrue on any amount 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)

(2000)

8

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a.

Interest on unpaid amounts shall begin to accrue

from the respective date each penalty payment

is due and continue

to accrue to the date payment is received.

b.

Where partial payment is made on any payment amount

that is

due,

such partial payment shall be first applied to any

interest on unpaid amounts then owing.

c.

All interest on amounts owed the Complainant shall

be paid by certified check payable to the “Illinois Environmental

Protection Agency”

for deposit

in the Environmental Protection

Trust Fund and delivered in the same manner as described in

Section

IX.2. herein.

d.

In the event that Respondent

fails to make all or

part of the payment

set forth in Section

IX.2,

Respondent shall be

in default and the unpaid balance owed, plus any accrued interest,

shall become due and owing to Complainant,

immediately.

5.

Respondent

shall in the future operate in compliance

with the Act and Board Regulations promulgated thereunder.

6.

Respondent shall cease and desist from further

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

IV.C.

of this Stipulation.

X.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation and Proposal for Settlement in no way

affects Respondent’s responsibility to comply with any federal,

state or local laws and regulations,

including but not limited to

9

---

the Act,

41S ILCS 5/1

et seq.

(2000),

and the Board Regulations,

35

Ill. Adm.

Code Subtitle A through H.

RIGHT OF ENTRY

In addition to any other authority,

the Illinois EPA,

its

employees and representatives, and the Attorney General, his

agents and representatives,

shall have the right of entry into and

upon the Respondent’s facility which is the subject of this

Stipulation and Proposal for Settlement, 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, his employees and representatives may

take photographs,

samples, and collect information,

as they deem

necessary.

RELEASE FROM LIABILITY

In consideration of Respondent’s

full payment

of the civil

penalty of three-hundred seventy-one thousand six hundred eighty-

eight dollars

($371,688.00),

commitment to continue compliance

with the terms of this Stipulation and Proposal for Settlement

entered herein,

the requirements of the Act, and the regulations

promulgated thereunder,

the Complainant releases, waives and

discharges Respondent and its employees,

agents,

directors,

officers,

successors and assigns from any further liability or

penalties from the violations of the Act and Board regulations

which were the subject matter of the Complaint,

upon receipt by

the Complainant

of all payments required by Section

IX. of this

Stipulation.

However, nothing in this Stipulation and Proposal

10

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fbr Settlement shall be construed as a waiver by Complainant of

the right to redress future or heretofore undiscovered violations

or obtain penalties with respect thereto.

11

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WHEREFORE,

Complainant and Respondent’s request that the

Board adopt and accept the foregoing Stipulation and Proposal for

Settlement

as written.

AGREED:

FOR THE COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

JAMES E.

RYAN

Attorney General

State of Illinois

MATTHEW J. DUNN,

Chief

Environmental Enforcement\Asbestos

Litigation Division

By:

________

______

ROSEMARIE CAZEAU, ~Øiief

Environmental Bureau

Assistant Attorney General

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

By:

FOR THE RESPONDENT:

By.

M~~TORE

FERRARA

II

F

RRARA PAN

CANDY

COMPANY

resident

Date:

Date:

Date:

12

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CERTIFICATE

OF SERVICE

I,

JOEL J.

STERNSTEIN, an Assistant Attorney General,

certify that on the 12th day of September,

2002,

I caused to be

served by First Class Mail the foregoing Stipulation and Proposal

for Settlement 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.

~JT

~-~g,j~3

JOEL

J.

STERNSTEIN

C:\Joel

-

Case Documents\Ferrara Pan\Notice of Filing

-

stip.wpd

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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,

4lS ILCS 5/31(c) (2)

(2000).

WHEREFORE,

Complainant, PEOPLE OF THE STATE OF ILLINOIS,

hereby request that the Board grant this motion for relief from

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

of the Act,

415

ILCS S/31 (c) (1)

(2002)

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

JAMES

E. RYAN

ATTORNEY GENERAL

MATTHEW J. DUNN,

Chief

Environmental Enforcement

/

Asbestos Litigation Division

By:_______

JOEL

J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 West Randolph,

20th

Floor

Chicago, Illinois 60601

(312)

814-6986

2