RECE~VEDCLERK’S OFFICE
REC~vED
CLERK’S OFFICE
STATE OF ILLINOIS
RECE~VE~
CLERK’S OFFICE
STATE OF ILLINOISPollution Control Board
LISA MADIGAN, Attorney Generalof the State of Illinois, )

RECE~VED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MAY 26 2004

PEOPLE OF THE STATE OF ILLINOIS,             

STATE OF ILLINOIS

Complainant,                     

Pollution Control Board

vs.

)

No. PCB 04-98

(Enforcement-Air, Land, Water)

AURA

II, INC., a Wisconsin

corporation,

Respondent.

NOTICE OF FILING

TO: Debra M. Slater       

Bradley P. Halloran

Weiss, Berzowski, Brady   

Hearing Officer

700 N. Water Street     

Illinois Polluton Control

Suite 1400          

Board, Suite 11-500

Milwaukee, WI 53202      

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

LISA MADIGAN

Attorney General

State of Illinois

BY:

P~~)&~4~)

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Fir.

Chicago, IL 60601

(312) 814-3816

DATE: MAY 26, 2004

THIS FILING IS SUBMITTED ON RECYCLED PAPER

REC~vED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD   

MAY

262004

STATE OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS, 

)

PoUutionControl Board

Complainant,

vs.

)

No. PCB-04-98

(Enforcement-Air, Land, Water)

AURA

II, INC., a Wisconsin

corporation,

)

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 Flr.

Chicago, Illinois 60601   

(312) 814-3816

DATE:   

MAY 26, 2004

G: \Environmental Enforcement\Z BEREKET-AB\AurallReliefFrom HearingRequirement .wpd

RECE~VE~

CLERK’S OFFICE

MAY 262004

STATE OF ILLINOIS

Pollution Control Board

No. PCB 04-98

(Enforcement 

Air,

Land, Water)

STIPULATION AND PROPOSAL FOR SETTLEMENT

WITH RESPONDENT AURA II, INC.

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, AURA II,

INC., a Wisconsin corporation, (“AURA” 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 evidence in this or any other

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

LISA MADIGAN, Attorney General

of the State of Illinois,        

)

Complainant,

v.

ONYX ENVIRONNENTAL SERVICES, LLC a

Delaware limited liability company,

and AURA II, INC., a Wisconsin

corporation,

Respondent.

-.1—

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.

III.

APPLICABILITY

This Stipulation shall apply to and be binding upon the

-2-

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

i.  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 (not aparty 

to this Stipulation) is a

Delaware limited liability company, authorized to do business in

the State of Illinois.

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

-3-

of hazardous waste, hazardous waste packaging, removal, disposal,

transportation, and recycling.

Respondent AURA is a Wisconsin corporation,

not

authorized to transact 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 (“the waste”)

7.  Sometime prior to July 2, 2001, AURA entered into a

contract with ONYX for ONYX to transport

the 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., ONYX picked up

2000 gallons of the Waste from AURA’s Wisconsin facility

and

transferred the Waste to an unlined ONYX tanker for 

transportation through the State of Illinois to a waste

management facility in Vickery, Ohio.

B.  SITE DESCRIPTION

1.  On July 2, 2001, at or around 9:45 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

-4-

Lake Forest Plaza Oasis on Interstate

94, near the Village of

Libertyville, in Lake County, Illinois.

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

eyacuated 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 1-94, St. Mary’s Road, Bradley Road and Old

School Road in Lake County, Illinois,

for several hours.

3.  Some of the Waste also leaked onto soil, asphalt and

stone surfaces near the ONYX truck, and then some of that Waste

migrated to storm sewers and a drainage way.

C. Alleged Violations

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

Regulations,

35 Ill. Adm. Code, 35 Ill. Adm. Code, are outlined

as follows:                  

COUNT I

AIR POLLUTION: Violation of Section 12(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-

5/12(d) (2002)

COUNT

IV CAUSING OR ALLOWING OPEN DUMPING AND ABANDONING OF

WASTE: Violation of Section 2i(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:

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;

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 states that the release of almost 2,000

gallons of the Waste, containing hydrochloric, sulfuric, and

nitric acids from ONYX’s truck into the environment in Illinois

-6-

and onto the 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 the business

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 AURA to ask and

obtain from Onyx a lined tanker to transport the hazardous waste.

5.  AURA was not asked to participate and it did not

participate in the cleanup of the area contaminated with the

release of the Waste.

VI.

CONSIDERATION OF SECTION 42 (h) FACTORS

Section 42(h) of the Act, 415 

ILCS 5/42(h) (P.A.93-0575, eff.

01/01/2004) 

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:

-7-

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; and

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 perform.

In response to these factors, the Complainant states as

follows:                       

1.  The release to the air 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 evaluation of the

-8-

Lake Forest Oasis and the closing of nearby roads.

The release

to the land impacted or threatened to impact surface water.

2.  AURA did not participate in the cleanup of the Site.

Complainant does not believe that AURA obtained any

economic benefit by having a load of its waste being transported

by an unlined as opposed to a lined ONYX tanker.

Complainant has determined in this instance,

that a

penalty of Forty Thousand Dollars ($40,000.00) against AURA is

reasonable and will serve to deter further violations

by AURA and

to otherwise aid in enhancing voluntary compliance with the Act

AURA and 

other persons similarly subject to the Act.

Complainant’s records do not reflect any previously

adjudicated violations of the Act by AURA.

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 AURA shall pay a civil penalty of Forty

Thousand Dollars ($40,000.00) 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

-9-

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:

Zemeheret Bereket-Ab

Assistant Attorney

General

Environmental Bureau 

188 West Randolph Street, 20th Floor

Chicago, IL 60601

2.  AURA’s Federal Employer Identification 

Number

(“FEIN”)

is 39-1423073. The FEIN number shall appear

on the face of the

certified check or money order.

For purposes of payment and collection

Respondent may

be reached at the following address:

AURA-Il, Inc.       

Attn: Thomas Braier, President

8035 W. Calumet

Milwaukee, WI 53223

and

Debra A. Slater

Weiss, Berzowski, Brady, LLP

700 N. Water Street, Suite 1400

Milwaukee, WI 53202      

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

-10-

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.                

Where partial 

payment

is made on any 

payment

amount that is due, such partial payment shall be

first applied to any interest on unpaid

amount-s

then owing.

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

AURA 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 the AURA’s responsibility

to comply with any federal, state or local regulations, including

—11—

but not limited to the Act and Board regulations.

RELEASE FROM LIABILITY         

In consideration of AURA’s payment of Forty Thousand Dollars

($40,000.00) 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 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.)

-12-

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:

LISA MADIGAN

Attorney General

State of Illinois

MATTHEW J. DUNN, Chief       

ILLINOIS ENVIRONMENTAL

Environmental Enforcement/ 

PROTECTION AGENCY

Asbestos Litigation Division

BY:

~

j~:

R MA~CAZE U, hief   

JOSEP E. SVOBODA

Environmental Bur      

Chief Legal Counsel

DATED: $7 

/D1/O

g

DATED: 

/1?eV~ ~

7~Y

FOR THE RESPONDENT:

AURA II, INC., a Wisconsin

TITLE: ______________________

FEIN 

#:

39-1423073

DATED: 

___________________

-13-

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.

~cLk4A~

ZEMEHERET BEREKET-AB      

G~\Environmental Enforcement\Z BEREKET-A~\AuraIINOF&Certiflcate.wp~                                        

L