RECEWE~
CLERK’S
OFFICE
JUL
3
02004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATEOF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution Control ~oard
by
JAMES
E.
RYAN,
Attorney General
of
the State
of Illinois,
Complainant,
PCB 01—i
v.
(Enforcement
-
Air)
METALS TECHNOLOGY CORPORATION,
an Illinois Corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that
on the 30th day of
July,
2004,
I filed
with the Clerk of
the Illinois Pollution Control Board a Stipulation
and Proposal for Settlement and a Motion to Request Relief From
Hearing Requirement,
copies of which are attached hereto and are
hereby served upon you.
PEOPLE OF THE STATE
OF ILLINOIS
LISA MAIJIGAN
Attorney General
of the
State ,~fIllinois
By:___________________
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
~
Fl.
Chicago,
IL 60601
312/814-1511
DATE: July
30,
2004
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Vincent
S.
Oleszkiewicz
Baker
& McKenzie
One Prudential Plaza
Suite
3300
130 East Randolph Street
Chicago,
IL 60601
Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street,
11th Floor
Chicago,
IL 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JIlL 30 2O~4
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF ILLJ~JOIS
by
LISA
MADIGAN,
Attorney
General
)
OIiut~~n
Control
8oard
of the State
of Illinois,
Complainant,
)
PCB 01-1
V.
)
(Enforcement
-
Air)
METALS TECHNOLOGY CORPORATION,
an Illinois Corporation,
Respondent.
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
NOW COMES the Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA MAJIGAN,
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 July
3,
2000,
a Complaint was filed with the Pollution
Control Board
(“Board”)
in this matter.
On July 30,
2004,
a
Stipulation and Proposal for Settlement was filed with the Board.
2.
Section 31(c) (2)
of the Illinois Environmental Protection
Act
(“Act”),
415 ILCS 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
Cc),
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 the same manner
as
is
required
for
hearing
pursuant
to
subdivision
(1)
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
31(c) (2)
of the Act.
WHEREFORE,
the Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA MAJIGAN,
Attorney General of the State
of Illinois,
requests
relief from the requirement of
a hearing pursuant to 415
ILCS
5/31 Cc) (2) (2002).
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
By:
~
~JL~
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
~
p~j•
Chicago,
IL 60601
312/814-1511
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE
OF ILLINOIS,
by LISA MADIGAN, Attorney General
of
the State of Illinois,
CQmplainant,
)
PCB 01-1
v.
)
(Enforcement
-
Air)
METALS TECHNOLOGY CORPORATION,
an Illinois Corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
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,
METALS TECHNOLOGY CORPORATION
(“MTC”),
by its
attorney,
do hereby submit this Stipulation and Proposal for
Settlement.
The parties agree
that the Complainant’s
statement of
facts contained herein
is agreed to only for the purposes of
settlement.
The parties further state that neither the fact that
a
party has entered into this stipulation,
nor any of
the facts
stipulated herein,
shall
be admissible
into evidence,
or used for any
purpose
in this,
or any other proceeding,
except
to enforce the terms
hereof, by the parties to
this agreement.
Notwithstanding
the
previous sentence,
this Stipulation and Proposal for Settlement,
and
any Illinois Pollution Control Board
(“Board”)
order accepting same,
may be used as evidence of
a past adjudicated violation of the Act
as
alleged herein,
pursuant
to Section 42(h)
of
the Illinois
Environmental Protection Act
(“Act”),
415 ILCS
5/42(h) (2002),
in
1
determining appropriate civil penalties for any future violations
of
the Act.
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 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 Proposal for
Settlement and to legally bind them to it.
III.
APPLICABILITY
This Stipulation and Proposal
for Settlement shall apply
to,
and
be binding upon,
the Complainant and MTC,
and any officer,
agent,
employee
or servant of MTC,
as well as the MTC’s successors and
assigns.
MTC shall not raise as
a defense to any enforcement action
taken pursuant
to this settlement
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 settlement.
IV.
STATEMENT OF FACTS
A.
Parties
1.
The Attorney General of the State of Illinois brought this
2
action on her own motion,
as well
as
at the request of the Illinois
Environmental Protection Agency
(“Illinois EPA”), pursuant
to the
statutory authority vested in her under Section 31 of the Act,
415
ILCS
5/31
(2002)
2.
Illinois EPA is an agency of the State of Illinois created
pursuant to Section 4 of the Act,
415 ILCS
5/4
(2002),
and is charged,
inter
alia,
with the duty of enforcing the Act.
3.
Respondent MTC,
at all times relevant
to the Complaint
in
this matter,
was and is an Illinois corporation in good standing.
B.
Facility Description
Respondent MTC,
at all times relevant
to
the Complaint
in this
matter,
has owned and operated a facility located at
120 North Schmale
Road,
Carol
Stream,
Du Page County,
Illinois
(“facility”)
.
Respondent
is in the business
of heat treating and cleaning metal parts.
Respondent heat treats metal parts
in small furnaces to anneal
or
temper the metal,
cleans parts
in an open top vapor degreaser and
sandblasts parts as required.
C.
Noncompliance
Complainant
has alleged the following violations
of the Act
against the Respondent:
Count
I:
FAILURE TO OBTAIN A CONSTRUCTION PERMIT BEFORE
CONSTRUCTING EQUIPMENT CAPABLE OF CAUSING OR CONTRIBUTING TO
AIR POLLUTION
violations of 415
ILCS
5/9(b) (2002)
and 35
Ill. Adm.
Code 201.142.
(2002)
Count
II:
FAILURE TO OBTAIN AN OPERATING PERMIT BEFORE
CAUSING OR ALLOWING THE OPERATION OF A NEW AIR POLLUTION
EMISSION SOURCE
violations
of 415
ILCS 5/9(b) (2002)
and 35
Ill. Adm.
Code 201.143.
Count
III:
FAILURE TO OBTAIN A CONSTRUCTION PERMIT FOR A
3
MAJOR STATIONARY SOURCE OF A HAZARDOUS AIR POLLUTANT,
LOCATED IN A SEVERE NONATTAINMENT AREA FOR OZONE
violations
of 415
ILCS
5/9(b)
(2002)
and 35
Ill. Adm.
Code 203.201.
Count IV:
FAILURE TO TIMELY SUBMIT A CLEAN AIR ACT PERMIT
PROGRAM APPLICATION
violations
of 415
ILCS 5/9 (a) (2002),
415 ILCS 5/39.5(6) (b) (2002)
and 35
Ill. Adm.
Code 270.301.
Count V: FAILURE TO TIMELY SUBMIT AN EMISSION REDUCTION
MARKET SYSTEM APPLICATION
violations
of 415 ILCS
5/9.8(b) (2002)
and 35
Ill. Adm.
Code 205.310.
Count VI:
FAILURE TO DEMONSTRATE COMPLIANCE WITH THE
NATIONAL EMISSION STANDARD FOR HAZARDOUS AIR POLLUTANTS
APPLICABLE TO HALOGENATED SOLVENT CLEANING violations
of
415 ILCS 5/9.1(d) (2002)
and 40 CFR
63.463.
V.
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 questions
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
4
5.
any subsequent compliance.
In response
to these factors,
the parties state as follows:
1.
Impact to the public resulting from MTC’s noncompliance was
that the Illinois EPA and the public were not privy to information
that
is important to the control of air pollution in Illinois.
The
permitting process
is the only method available for
the State to
identify possible air pollution sources and their control.
An
additional impact
to the public was caused by excess emissions
released into
the atmosphere.
2.
The metal treating facilities
that
are
the subject of the
Complaint have social and economic value.
3.
The metal treating facilities that are
the subject of the
Complaint are suitable
to the areas in which they are located.
4.
Complying with the requirements of
the Act and the Board
Regulations
is both technically practicable and economically
reasonable.
5.
MTC applied for and was subsequently issued the requisite
air permits and has resolved the concerns
for excess emissions for
the.
regulated combustion and emission sources.
The Respondent has
addressed the violations that are
the subject of the complaint in this
case.
VI.
CONSIDERATION OF SECTION 42(h)
FACTORS
Section 42(h)
of
the Act,
415 ILCS
5/42(h) (eff.
1/1/04),
provides
as follows:
In determining the appropriate civil penalty
to be imposed under subdivisions
(a),
(b) (1),
5
(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 respondent
in
attempting
to
comply
with
the
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
benefit
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;
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.
6
In response to these factors,
the parties state as follows:
1.
The violations that are the subject of the Complaint occurred
over
an approximately five-year period.
2.
The Respondent was diligent
in addressing the violations by
meeting with the State on several occasions to discuss measures necessary
to
achieve
compliance,
and
the
implementation
of
such
measures
to
facilitate
operating
in
compliance
with
the
applicable
environmental
statutes and regulations.
3.
The
Respondent
did
accrue
an
economic
benefit by
avoiding
timely preparation
of
construction and operating permit
applications,
CAAPP
permit
application
submittal,
ERMS
baseline
determination,
and
failure
to demonstrate compliance with
all
requirements
of
40
CFR
63,
Subpart
T,
the exact amount of which it
is difficult
to determine.
The
civil
penalty
contained
herein
recovers
any
economic
benefit
obtained by Respondent
from the alleged noncompliance.
4.
The parties believe that a civil penalty of $50,000.00 coupled
with a Supplemental Environmental Project will deter MTC from committing
further violations, and will aid in enhancing voluntary compliance by MTC
and others similarly situated and subject to the Act.
5.
The
Complainant
is
not
aware
of
any
other
adjudicated
violations of the Act by MTC.
6.
Self-disclosure
is not
an issue in this matter.
7.
A Supplemental Environmental
Project has been undertaken
as
described in Section VII.6 of this Stipulation.
7
VII.
TERMS OF SETTLEMENT
1.
The Respondent neither admits
nor denies the violations
as
alleged in the Complaint.
2.
The Respondent shall pay
a civil penalty of Fifty Thousand
Dollars
($50,000.00)
.
Payment shall be made as follows:
a.
An initial payment
of TWENTY FIVE THOUSAND
($25,000.00)
shall be due within thirty
(30)
days after the date
the Board adopts
a
final opinion and order approving this Stipulation and Proposal
for
Settlement.
b.
A final payment of TWENTY FIVE THOUSAND
($25,00.00)
shall be paid within twelve
(12)
months after the date
the Board
adopts
a final opinion and order approving this Stipulation and
Proposal
for Settlement.
c.
Payments shall
be made by certified check or money
order,
payable to the Illinois Environmental Protection Agency,
designated to the Illinois Environmental Protection Trust Fund,
and
shall be sent by first class mail
to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794
A copy of the check shall
be sent
to:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th Floor
Chicago,
IL 60601
MTC shall write the case caption and number,
and its Federal Employer
8
Identification Number
(“FEIN”),
36-2717867,
upon the certified check
or money order.
3.
For purposes
of payment and collection,
the Respondent may
be reached at
the following addresses:
Metals Technology Corporation
120 North Schmale Road
Carol
Stream,
Il.
60186
and
Baker and McKenzie
Vincent Oleszkiewicz
130 East Randolph,
Suite 3300
Chicago,
Il.
60601
4.
If the Respondent fails
to make any payment specified within
Section VII.2.a.
of this Stipulation Order on or before
the date upon
which the payment is due,
the Respondent will
be in default and the
remaining unpaid balance of
the penalty,
plus any accrued interest,
shall be due and owing immediately.
5.
In the event
of default,
the Complainant shall
be
entitled to reasonable costs of collection,
including reasonable
attorney’s fees.
6.
Said penalty amount
is not inclusive of avoided permit
fees by Respondent,
which fees total $3000.00.
Said fees must
be paid within
60 days after the date on which the Board adopts
a
final order approving this Stipulation and Proposal
for
Settlement.
Said fees are
to be paid by certified check or money
order, payable
to CAAPP
091
Fund,
and mailed to the following
address:
Illinois Environmental Protection Agency
Fiscal Services
9
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,
IL
62794-9276
7.
Respondent shall undertake and complete
a Supplemental
Environmental Project
(“SEP”)
as approved by the Illinois EPA.
The SEP
requires that MTC ship parts
to an outside vendor for cleaning through
the use of an aqueous solution
(soap and water)
,
these parts are then
shipped back to MTC for heat treating and processing.
This aqueous
solution cleaning may also be performed by MTC at its facility so long
as the proven cost
is not
less than that which MTC is currently
expending on an annual basis.
This cleaning involves no solvent or
volatile organic compound emissions to
the atmosphere.
The cost for
this cleaning
is allegedly over and above that which would result if
MTC ran these parts through its vapor degreasing system.
This program
is not necessary or required under MTC’s CAAPP permit,
it does
however,
improve,
protect and reduce risks
to the public health and
environment by reducing annual HAPs emissions into the atmosphere from
the MTC facility.
The Respondent
agrees to undertake
this SEP for
at least
the next
seven years
(2004 through 2010)
.
In the event that
the Respondent
does not perform the SEP,
in any particular year,
the Respondent shall
tender $10,000.00 in the manner required in Paragraph VII.2.c,
for
each year that
the
SEP is not performed.
This check shall be received
within 30 days
of noncompliance with this paragraph in each of
the
years
2004 through 2010.
Respondent shall submit an annual report evidencing the actual
costs of this outsourcing and the emissions reductions at the facility
10
attributable
to this aqueous cleaning to the Illinois EPA at the
address above by March
15 of each year starting in 2005.
Any public statement,
oral
or written,
made by the Respondent
regarding this SEP shall include the following language:
“This project
was undertaken in connection with the settlement of an enforcement
action brought by the People of the State of Illinois.”
VIII.
INTEREST ON PENALTIES
1.
Pursuant to Section
42(g)
of
the Act,
415 ILCS
5/42(g)
(2002),
interest shall accrue on any penalty amount owed by the
Respondent 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)
2.
Interest
on unpaid penalties shall begin to accrue from the
date
the penalty
is due and continue to accrue to the date payment
is
received by the Illinois EPA.
3.
Where partial payment
is made
on any penalty amount that is
due, such partial payment shall be first applied to any interest
on
unpaid penalties then owing.
4.
All interest on penalties owed
the Complainant
shall be paid
by certified check or money order payable
to the Illinois EPA for
deposit
in the EPTF at the above-indicated address.
The
name,
case
number,
and the Respondent’s Social Security number
shall appear on
the face of the certified check
or money order.
A copy of the
certified check or money order and the transmittal letter shall be
sent
to:
11
Paula Becker Wheeler
Assistant Attorney General
(or other designee)
Environmental
Bureau
188 W.
Randolph St.,
20th
Floor
Chicago,
Illinois 60601
Ix.
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.
x.
CEASE AND DESIST
Respondent shall cease and desist from future 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 and
Proposal for Settlement.
XI.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation and Proposal
for Settlement
in no way affects
the Respondent’s responsibility to comply with any federal,
state or
local
laws and regulations.
12
XII.
RELEASE FROM LIABILITY
In consideration of the Respondent’s payment of
a $50,000.00
civil penalty,
performance of its
SEP, and its commitment to refrain
from further violations of
the Act and the Board Regulations,
upon
receipt by Complainant
of the payment required by Section VII
of this
Stipulation and proof
of the performance of the SEP.
the Complainant
~eleases,
waives and discharges Respondent and its officers,
~iirectors,
employees,
agents,
successors and assigns from any further
~
iability or penalties
for violations which were the subject matter of
~
Complaint herein.
However,
nothing in this Stipulation and
~roposal
for Settlement shall
be construed as
a waiver by Complainant
f the right to redress future violations or obtain penalties with
espect thereto.
This Stipulation may be executed by the parties in one
or more
—~unterparts, all
of which taken together,
shall constitute one and
~ie
same instrument.
(THE REST OF THIS PAGE
IS LEFT INTENTIONALLY BLANK)
13
WHEREFORE,
Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal
for Settlement
as written.
.
AGREED:
.
.
FOR THE COMPLAINANT:
.
FOR THE RESPONDENT:
PEOPLE OF THE STATE OF ILLINOIS
METALS TECHNOLOGY CORPORATION
Attorney General
By:____________
State of Illinois
Its:________________
Dated:________________
By:________________________
ROSEMARIE
CAZEAU,
Chief
Environmental Bureau
Assistant Attorney General
Dated:
________________________
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By:________________________
JOSEPH E.
SVOBODA
Chief Legal Counsel
Dated
WHEREFORE,
Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal for Settlement
as written.
AGREED:
FOR THE COMPLAINANT:
FOR THE RESPONDENT:
PEOPLE OF THE STATE OF ILLINOIS
METALS TECHNOLOGY CORPORATION
LISA MADIGAN
Attorney General
.
By:__________________________
State of Illinois
Its:
_______________________
Dated:
By:
R
EMARIE CAZEAU,
hief
Environmental
Bureau
Assistant Attorney General
Dated:__________________________
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By:
(j#~~f~t
JOS~H E.
SVOBODA
Chief Legal Counsel
Dated:
CERTIFICATE OF SERVICE
I,
PAULA BECKER WHEELER,
an Assistant Attorney General
in this
case,
do certify that
I caused to be served this 30th day of July,
2004,
the foregoing Stipulation and Proposal for Settlement,
Motion to
Request Relief From Hearing Requirement and Notice of Filing upon the
persons 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.
Y2~—~L~
~
PAULA BECI’~ERWHEELER
