PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
ONYX ENVIRONMENTAL SERVICES,LLC
a Delaware limited liability
company,
Respondent
RECE~VED
CLERK’S OFFICE
MAY
26
2004
STATE OF
ILLINOIS
Pollution Control Board
No. PCB 04-98
(Enforcement-Air, Land, Water)
NOTICE OF FILING
TO:
Mr. Greig R. Siedor
Chief Legal Officer
Onyx Environmental Services
700 East Butterfield Road
Suite 201
Lombard,
Illinois 60148
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control
Board,
Suite 11-500
James R. Thompson Center
100 W. Randolph Street
Chicago,
Illinois 60601
PLEASE TAKE NOTICE that
I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board an original
and nine copies of the Stipulation and Proposal for Settlement,
an Agreed Motion for Relief from the Hearing Requirement,
Notice
of Filing and a Certificate of Service,
a copy of which
is
attached herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
DATE:
MAY
26,
2004
LISA
MADIGAN
Attorney General
State of Illinois
BY:
2~IPM~
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Flr.
Chicago,
IL 60601
(312)
814-3816
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
vs.
)
THIS FILING
IS SUBMITTED ON RECYCLED
PAPER
•
R~CE~VED
CLERK’S OFFICE
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
•
MAY262004
STATE OF ILLINOIS
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
•
)
Pollution
Control Board
Complainant,
vs.
)
No.
PCB
04-98
(Enforcement-Air,
Land,
Water)
ONYX ENVIRONMENTAL SERVICES,LLC,a
Delaware limited liability company,)
Respondent.
AGREED MOTION TO REQUEST RELIEF FROM THE HEARING REQUIREMENT
In support of this Motion,
the parties state
as follows:
1.
Today,
the People of the State of
Illinois,
filed a
Stipulation and Proposal for Settlement, with the Illinois
Pollution Control Board.
2.
Section 31(c) (2)
of the Illinois Environmental
Protection Act,
(“Act”),
415 ILCS 5/31(c) (2) (2002) 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).
.
.
3.
Complainant and Respondent agree that a formal hearing
is not necessary to conclude this matter and wish to avail
themselves of Section 31(c) (2)
of the Act,
415 ILCS
5/31(c)
(2)
(2002)
WHEREFORE, Complainant and Respondent request relief from
the hearing requirement pursuant to Section 31(c) (2)
of the Act.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement!
Asbestos Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
BY:
-
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Fir.
Chicago, Illinois 60601
•
(312)
814-3816
•
DATE:
MAY
26,
2004
G: \Environmental Enforcement\Z BEREKET-AB\OnyxReliefFromHearingRequirement .wpd
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney
General
of the State of Illinois,
Complainant,
ONYX ENVIRONMENTAL SERVICES,
LLC,
a Delaware limited liability company,
arid
AURA
II,
INC.,
a Wisconsin
corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
WITH RESPONDENT ONYX ENVIRONMENTAL
SERVICES
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois,
on her own
motion and at the request
of the Illinois Environmental
Protection Agency (“Illinois EPA”),
and Respondent, ONYX
ENVIRONMENTAL SERVICES,
LLC,
a Delaware limited liability company
(“Onyx” and collectively
“Parties”), do hereby agree to this
Stipulation and Proposal for Settlement
(“Stipulation”)
.
The
Parties agree that the Statement of Facts contained herein
represent 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
V
RECE~VED
CLERK’S OFFICE
MAY
2
6
2004
STATE OF ILLINOIS
POII~tj~n
Control BQard
No. PCB 04-98
(Enforcement
-
Air,
Land,
Water)
—1—
evidence in this or any other proceeding except to enforce the
terms of this Stipulation.
Notwithstanding the previous
sentence,
this Stipulation and any Illinois Pollution Control
Board
(“Board”)
order accepting same may be used in any future
enforcement action as evidence of a past adjudication of
violation of the Illinois Environmental Protection Act
(“Act”)
for purposes of Section 39(i)
and 42(h)
of the Act,
415 ILCS
39(i)
and 5/42(h) (2002).
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
5/1 et
seq
(2002)
II.
•
AUTHORIZATION
The
undersigned
representative
for
each
party
certifies
that
he/she
is
fully
authorized
by
the
party
whom
he/she
represents
to
enter into the terms and conditions of this Stipulation and to
legally ~bind the party to it.
-2-
•
••
III.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and Respondent, and any officer, director,
or agent,
of Respondent,
as well as Respondent’s successors and assigns.
Respondent shall not raise as a defense to any enforcement action
taken pursuant to this Stipulation the failure of its officers,
directors,
agents,
servants or employees to take such action as
shall be required to comply with the provisions of this
Stipulation.
IV.
•
•
STATEMENT OF FACTS
A. Parties
1.
The Attorney General of the State
of
Illinois
brings
this action on her own motion,
as well as
at
the
request of the
Illinois EPA, pursuant to the terms and provisions of Section 31
of the Act,
415 ILCS 5/31
(2002)
2.
The Illinois EPA is an administrative agency
established in the executive branch of the state government by
Section 4 of the Act,
415 ILCS 5/4
(2002)
,
and is charged,
inter
alia,
with the duty of enforcing the Act.
3.
Respondent Onyx is a Delaware limited liability
company, authorized to do business in the State of Illinois.
-3-
ONYX’s corporate office is located at
700 East Butterfield Road
Lombard,
DuPage
County,
Illinois.
4.
ONYX
is
a
provider
of
integrated
environmental
management services, including the identification and separation
of hazardous waste,
hazardous waste packaging,
removal,
disposal,
transportation,
and
recycling.
5.
Respondent AURA
(not
a party to this Stipulation)
is a
Wisconsin
corporation,
not
authorized
to
tra~sact
business
in
the
State of Illinois.
6.
AURA owns a gold and silver reclamation business at
8035 W. Calumet Road, Milwaukee,
Wisconsin.
In the operation of
this business, AURA generates a hazardous waste that contains
nitric acid,
hydrochloric acid and sulfuric acid,
as well as some
residual metals with RCRA hazardous waste numbers: D002,
D006,
D007, D008 and DOll
(‘AURA waste”)
7.
At sometime prior to July
2,
2001,
AURA entered into a
contract with ONYX for ONYX to transport the AURA waste from
AURA’s
Wisconsin facility to an off-site waste management
facility located in Ohio.
8.
On July
2,
2001,
at or around 7:00
a.m.
at the
Wisconsin facility, AURA transferred 2000 gallons of the AURA
waste
to an unlined ONYX tanker for transportation through the
State of Illinois to a waste management facility in Vickery,
Ohio.
•
-4-
~.
SITE DESCRIPTION
On July
2,
2001,
at or around 9:34 a.m., while the ONYX
tanker was passing through the State of Illinois on its way to
Ohio,
it was discovered that the ONYX tanker was leaking.
At
around 9:49 a.m.,
the driver of the ONYX tanker pulled into the
Lake Forest Plaza Oasis on Interstate
94, near the Village of
Libertyville,
in Lake County,
Illinois.
2.
Approximately ten minutes later,
the ONYX tanker began
venting a vapor cloud out of its pressure relief valve to the
atmosphere.
Local emergency response officials evacuated 30-40
workers and customers from the Plaza Oasis and residents from
homes within a half mile radius to the west of the tanker.
Officials also closed one southbound lane of
1-94,
St. Mary’s
Road, Bradley Road and Old School Road in Lake County,
Illinois,
for several hours.
3.
Some of the
AURA
waste also leaked onto soil,
asphalt
and stone surfaces near the ONYX truck,
and then some of that
AURA waste migrated to storm sewers and a drainage way.
C.
Alleged Violations
1.
The Complaint filed in this matter on December 18,
2003, before the Illinois Pollution Control Board alleges the
following violations
of the Act,
415 ILCS 5/1 et
seq.
(2002)
,
and
Illinois Pollution Control Board
(“Board”) Air Pollution
-5-
Regulations,
35
Ill.
Adm.
Code,
35
Ill.
Adm.
Code,
are
outlined
as
follows:
COUNT
I
AIR POLLUTION: Violation of Section 9(a)
of the
Act,
415
ILCS 5/9(a) (2002),
and
35
Ill.
Adm.
Code
201.141;
COUNT
II
WATER POLLUTION:
Violation of Section 12(a)
of the Act,
415 ILCS
5/12 (a) (2002)
;
COUNT III CREATING A WATER POLLUTION HAZARD:
Violation of Section 12(d)
of the Act,
415
ILCS
5/12 (d) (2002)
;
COUNT
IV
CAUSING
OR.
ALLOWING
OPEN
DUMPING
AND
ABANDONING OF
WASTE:
Violation
of
Section
21(a)
and
(b)
of
the
Act,
415
ILCS 5/21(a) (b)
(2002).
V.
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 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;
-6-
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, Complainant states as follows:
1.
Complainant maintains that the release of almost 2,000
gallons of hazardous waste containing hydrochloric,
sulfuric, and
nitric acids from Onyx’s truck into the environment and onto the
surface of Lake Forest Plaza Oasis on Interstate
94, near the
Village of Libertyville
in Lake County,
Illinois,
interfered with
the health,
general welfare and physical property of nearby
residents,
businesses and people who worked at.the Oasis.
The
vapor
cloud
that
was
formed
as
a
result
of
the
release
lasted
for
up to
1 to 2 hours before
it was dissipated by the Libertyville
Fire
Department.
The
release
also
impacted
or
threatened
to
impact surface water.
2..
The transportation of wastes has social and economic
value
so
long
as
done
in
a
safe
manner.
3.
The transportation of wastes is suitable on Interstate
94 so long as done in a safe manner.
4.
Complainant states that it was both technically
practicable and economically reasonable for Onyx to provide a
lined tanker to transport the hazardous waste.
-7-
5.
On July
2,
2001,
the day the incident occurred,
Onyx
began
to
respond
to
clean
up
the
area
contaminated
with
the
release of the
AURA
waste.
VI.
CONSIDERATION OF SECTION 42(h)
FACTORS
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
o•f
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 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;
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;
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
-8-
respondent agrees to undertake
in settlement
of an
enforcement
action
brought
under
this Act, but
which the respondent is not otherwise legally
required to perform.
In response to these factors, the Complainant states as
follows:
1.
The cloud of acid vapor release from the Onyx tanker
caused
major
off-site
impacts
and
significantly
threatened
the
citizens of Libertyville, Lake Forest,
and Mettawa, affecting
their right to the quiet enjoyment of their homes,
as well as
necessitating the evacuation of the Lake Forest Oasis and the
closing of nearby rQads.
The acid spill also impacted waters of
the
State.
Onyx
demonstrated
to
the
Illinois
EPA,
approximately
three months after the incident,
that all residual source areas
of contamination had been cleaned up to appropriate cleanup
objectives.
2.
Onyx demonstrated diligence
in responding to the July
2001,
acid
waste
release.
Onyx’s
diligence has been considered
in
the
agreed
civil
penalty
amount.
3.
Complainant states that Onyx may have realized only
nominal economic benefit
in using an unlined tanker to ship
the
AURA
waste.
This assumes that unlined tankers are less
expensive
than
lined
ones,
but
that
the
differential
in
overall
cost
of
the
waste
transport
would
be
nominal.
4.
Complainant has determined in this instance,
that a
penalty of Eighty-Five Thousand Dollars
($85,000.00)
against Onyx
-9-
will serve to deter further violations of the Act and Board
regulations and aid in future voluntary compliance with the Act
and Board regulations.
5.
Complainant’s records
do not reflect any previously
adjudicated violations of the Act by Onyx.
6.
Self-disclosure
is not at issue in this matter.
•
7.
The settlement of this matter does not include a
supplemental environmental project.
VII.
TERMS OF SETTLEMENT
A.
Civil Penalty
1.
Respondent Onyx shall pay a civil penalty of Eighty-
Five
Thousand
Dollars
($85,000.00)
into the Illinois
Environmental Protection Trust Fund within Thirty
(30)
days after
the date on which the Board adopts a final order approving this
Stipulation and Proposal for Settlement.
Payment shall be made
by certified check or money order, payable to the Illinois EPA,
designated for deposit into the Environmental Protection Trust
Fund, and shall be sent by first class mail
to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
Further, a copy of the certified check or money order shall
be sent by first-class mail
to:
-10-
Zemeheret Bereket-Ab
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th Floor
Chicago,
IL 60601
2.
Onyx’s
Federal
Employer
Identification
Number
(“FEIN”)
is 36-4287998.
The FEIN number shall appear on the face of the
certified check or money order.
3.
For
purposes
of
payment and collection Respondent may
be
reached
at
the following address:
Greig
R.
Siedor,
Chief
Legal
Officer
Onyx Environmental Services,
L.L.C.
700 East Butterfield Road,
Suite 201
Lombard,
Illnois
60148
4.
Pursuant to Section 42(g)
of the Act,
415 ILCS
5/42(g) (2002),
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)
(2002)
a.
Interest on unpaid amounts shall begin to accrue
from
the
date
the
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.
-11-
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
this
Section
VII.
VIII.
CEASE AND DESIST
Onyx 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 IV.C.
of this• Stipulation.
IX.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects Onyx’s responsibility to
comply with any federal, state or local regulations,
including
but not limited to the Act and Board regulations.
X.
RELEASE FROM LIABILITY
In
consideration
of
Onyx’s
payment
of
Eighty-Five
Thousand
Dollars
($85,000.00)
civil penalty,
its commitment to refrain
from future violations of the Act and Board regulations,
Complainant releases, waives and discharges Respondent from any
further liability or penalties for violations of the Act and
regulations which were the subject matter of the complaint
-12-
herein,
and upon the payment of all monies owed.
However,
nothing in this Stipulation and Proposal for Settlement shall be
construed as a waiver by Complainant of the right to redress
future violations or obtain penalties with respect thereto.
(The remainder of this page is intentionally left blank.)
-13-
•
WHEREFORE,
Complainant and Respondent Onyx 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 ILINOIS
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW
J.
DUNN,
Chief
ILLINOIS ENVIRONMENTAL
Environmental Enforcement!
PROTECTION AGENCY
Asbestos Litigation Division
BY. ~ZEA~
~PE.LDA
Environmental B
eau
Chief Legal Counsel
DATED:
-
DATED:
/‘~2~’f
~,,
2O~
5”
FOR THE RESPONDENT:
ONYX
ENVIRONMENTAL
SERVICES,
LLC,
a
Delaware
limited
liability
company,
BY:
_________
Greig R.
Siedor
Chief Legal Officer
FEIN
#:
36-4287998
DATED:
U
M(~(
2pø~fr
-14-
CERTIFICATE OF SERVICE
I,
ZEMEHERET BEREKET-AB, an Assistant Attorney General,
do
certify that
I caused to be served on this 26th day of May
2004,
the foregoing Notice of Filing,
a Stipulation and Proposal for
Settlement,
and an Agreed Motion for Relief from the Hearing
Requirement,
upon
the
persons
listed
on
said
Notice
by
placing
same in an envelope bearing sufficient postage with the United
States Postal Service located at 100 West Randolph Street,
Chicago,
Illinois.
ZEMEHERET BEREKET-AB
G~\~nvironrnerita1Enforcement\Z BEREKET-AE\OnyxNOF&Certificatewpd
