RECE~VED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARI?~OV
19
2004
PEOPLE
OF
THE
STATE OF ILLINOIS,
)
STATE OF ILLINOIS
PoIIut~on
Control Board
Complainant,
V.
NATIONAL M~.TERIAL, L. P.,
an
)
PCB 01-02
Illinois limited partnership,
)
(Air-Enforcement)
d/b/a NATIONAL LAMINATION COMPANY,
and NM HOLDING,
INC.,
a Nevada
corporation,
Respondents.
NOTICE OF FILING
TO:
See Attached
Service List
PLEASE TAKE NOTICE that on the 19th day of November,
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
MADIGAN
Attorney General of the
State ~f Illinois
By:
~
~‘~W
~
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th
Fl.
Chicago,
IL 60601
312/814-1511
DATE: November
19,
2004
THIS FILING
IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Mr. Mark Steger
Holland & Knight LLP
131 South Dearborn Street
30th Floor
Chicago,
Illinois 60603
Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street,
11th Floor
Chicago,
IL 60601
CLERK’SOFFIth
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOA,~
~IUV
192004
PEOPLE OF THE
STATE
OF
ILLINOIS,
)
STATEOFILLINOIS
Pollution Control Board
Complainant,
V.
NATIONAL MATERIAL,
L.P.,
an
)
PCB 01-02
Illinois limited partnership,
)
(Air-Enforcement)
d/b/a NATIONAL LAMINATION COMPA1~JY,
)
and NM HOLDING,
INC.,
a Nevada
corporation,
Respondents.
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN,
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 September
5,
2002,
a First Amended Complaint was
filed with the Pollution Control Board
(“Board”)
in this matter.
On November 19,
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
(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).
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 MADIGAN, Attorney General of the State of Illinois,
requests relief from the requirement
of a hearing pursuant to 415
ILCS 5/31(c) (2) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State.’of I1.inois
188 W.
Randolph
By:_____________________________
Chicago,
Ii 60601
PAULA
BECKER WHEELER
312-814-1511
Assistant Attorney General
RECEJV~D
CLERK’S OFFICE
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
NOV
192004
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILLINOIS
Complainant,
)
PolIut~onControl Board
NATIONAL
MATERIAL,
L.P.,
an
)
PCB 01-02
Illinois limited partnership,
)
(Air-Enforcement)
d/b/a
NATIONAL
LAMINATION
COMPANY,
and
NM
HOLDING,
INC.,
‘a
Nevada
corporation,
Respondents.
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney General of the State of Illinois,
at the
request of the Illinois Environmental Protection Agency, and
Respondents, NATIONAL MATERIAL L.P.,
an Illinois limited
partnership, d/b/a NATIONAL LAMINATION COMPANY, and NM HOLDING,
INC.,
a Nevada corporation,
do hereby agree to this Stipulation
and Proposal for Settlement
(“Stipulation”)
.
The parties agree
that the statement of 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 of this
-1-
agreement.
Notwithstanding
the
previous
sentence,
this
Stipulation and Proposal for Settlement 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 Sections 39(i)
and 42(h)
of the Act,
415 ILCS 5/39(i)
and 5/42(h) (2002).
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 Respondents, and each of
them,
and on any officer,
director,
agent,
employee or servant of
Respondents,
as well’ as Respondents’ successors and assigns.
The Respondents shall not raise as a defense to any enforcement
-2-
actiOn taken pursuant to this settlement the failure of officers,
directors,
agents,
servants, or employees of Respondents 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 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, NATIONAL MATERIAL L.P. has been and is an
Illinois limited partnership.
4.
Respondent, NM HOLDING,
INC.
(“NM Holding”)
has been
and is the general partner of National Material L.P.
NM Holding
has been and is qualified to do business in Illinois.
B.
Facility Description
Respondents, ‘at all times relevant to the First Amended
Complaint in this matter, have owned and operated a manufacturing
facility located at 555 Santa Rosa Drive, Des Plaines, Cook
County,
Illinois, known as National Lamination Company
-3-
(“facility”).
Respondents were in the business of manufacturing
laminated parts for electric motors and other electrical
equipment.
Operations at the facility included stamping and
annealing of sheet metal to form laminated parts.
The facility
operated at its present location since at least April 1972,
and
ceased operations in March 2004.
Its operation of the facility
was subject to the Act and the Rules and Regulations promulgated
by the Illinois Pollution Control Board
(“Board”)
and the
Illinois EPA.
C.
Noncompliance
Complainant
has
alleged
the
following
violations
of
the
Act
against
the
Respondents:
COUNT
I:
CONSTRUCTING EMISSION SOURCES WITHOUT A PERMIT,
violations of 415 ILCS 5/9(b) (2000)
and 35
Ill. Adm.
Code 201.142;
COUNT II:
OPERATING EMISSION SOURCES WITHOUT A PERMIT,
violations 415 ILCS 5/9(b) (2000)
and 35
Ill. Adm. Code
201.143 and 201.144;
COUNT III: OPERATING A MAJOR STATIONARY SOURCE WITHOUT A CAAPP
PERMIT, violations of 415 ILCS 5/39.5(6) (b) (2000)
and,
35
Ill. Adm. Code 270.301(a);
COUNT IV:
FAILURE TO SUBMIT ANNUAL EMISSIONS REPORTS, violations
of 415 ILCS 5/9(a) (2000)
and 35
Ill. Adm. Code
201.302(a);
and
COUNT
V:
MAJOR
MODIFICATION
WITHOUT
A
PERMIT,
violations
of
415
ILCS 5/9(a)
(2000)
and
35
Ill.
Adm.
Code
203.201.
D.
Response
to
allegations
Respondents
neither
admit nor deny the alleged violations.
-4-
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;
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.
ANALYSIS:
The parties mutually state as follows:
1.
Character and Degree of Injury:
The
impact
to
the
public
from
the
Respondents’
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
-5-
their control.
2.
Social and Economic Benefit:
The
parties
agree
that
Respondents’
business
was
of
social
and
economic
value
when
it
was
in
operation.
3.
Suitability to the Area:
Operation of Respondents’
facility was suitable to the area
in which it was located while it was in operation.
4.
Technical Practicability:
Complying with the requirements of the Act and the Board
regulations is both technically practicable and economically
reasonable.
5.
Subsequent Compliance:
Respondents have addressed the violations that are the
subject of the First Amended Complaint and have subsequently
closed the facility.
VI.
CONSIDERATION OF SECTION 42(h)
FACTORS
Section
42(h)
of
the
Act,
415
ILCS
5/42(h)
(eff.
01/01/2004),
provides
as
follows:
In determining the appropriate civil penalty to be
imposed
under
subdivisions
(a),
(b)
(1),
(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 respondents in attempting to comply
-6-
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
respondents
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
respondents
and
to
otherwise
aid
in
enhancing
voluntary
compliance
with
this
Act
by
the
respondents
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
respondents;
6.
whether the respondents voluntarily self-
disclosed,
in accordance with subsecl±ion (1)
of
this Section,
the non-compliance to the Agency;
and
7.
whether the respondents have agreed to undertake a
“supplemental environmental project,” which means
an environmentally beneficial project that
respondents agree to undertake in settlement of an
enforcement action brought under this Act, but
which the respondents are not otherwise legally
required to perform.
ANALYSIS:
In response to these factors, the parties state as follows:
1.
The
violations
that
are
the
subject
of
the
First
Amended
Complaint
occurred
over
approximately
a
seven
year
period.
The
Respondents
have
operated
all
of
the
emission
units
since
at
least
1991 through
1998
without
the
requisite permits.
2.
The
Respondents
were
diligent
in
addressing
the
violations
by
submitting
an
application
for
a
state
operating
-7-
permit
and’
a CAAPP permit, and eventually ceased operation of the
subject
equipment to facilitate operating
in
compliance
with
the
applicable
environmental
statutes
and
regulations.
3.
Respondents have accrued an economic benefit by avoiding
compliance with air emission requirements from at least 1990-1998,
the exact amount of which is difficult to determine but the penalty
amount of $50,000 should cover said benefit.
Further, Respondents’ failure to obtain the necessary permits
prior to constructing and operating emission sources,
failure to
submit
annual
emissions
reports
and
having
initiated
a
major
modification of an emission source without the necessary permits
have all exacerbated this facility’s non-compliance.
Respondents
have
avoided paying
said permit
fees
which
will
be
recovered
pursuant to this Stipulation.
4.
The parties believe that
a civil penalty of $50,000.00
will deter Respondents from committing further violations, and will
aid
in enhancing voluntary compliance by Respondents and
others
similarly situated and subject to the Act.
5.
The Complainant
is
not
aware of any other adjudicated
violations of the Act by Respondents.
6.
Self-disclosure pursuant to Section 42(i)
of the Act is
not
an
issue
in this
matter.
The parties
agree,
however,
that
Complainant was unaware
of Respondents’
alleged violations until
Respondents filed the permit applications referred to in Paragraph
-8—
(2)
above.
7.
No Supplemental Environmental Project is contemplated
as part of the Settlement.
VII.
TERMS OF SETTLEMENT
1.
The Respondents shall jointly and severally pay a civil
penalty of Fifty Thousand Dollars
($50,000.00) within 30 days of
the date the Board issues an Order accepting this Stipulation.
Said
payment
shall
be
made
by
certified
check
or
money
order,
payable
to
the Illinois EPA, designated for deposit into the
Environmental Protection Trust Fund(”EPTF”),
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
2.
Respondents
shall
also
pay
avoided permit
fees,
totaling
$7,750.00,
within
30
days
after
the
date
on
which the Board
adopts
a final order approving this Stipulation.
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
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
3.
Respondents shall write their Federal Employer
-9-
Identification Nurnber(”FEIN”),
36-3559267,
and the case caption
and
number,
on
all
certified
checks
or
money
orders.
For
issues
relating
to
the
payment
of
the
penalty,
the
Respondents
may
be
reached
at
the
following
address:
National
Material,
L.P.
and
NM
Holding,
Inc.
c/o
Mark
J.
Steger
Holland & Knight LLP
131 South Dearborn Street
30th
Floor
Chicago,
Illinois
60603
A copy of the certified check or money order,
and all related
correspondence,
shall be sent by first class mail
to:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Fláor
Chicago,
Illinois 60601
4.
If the Respondents fail to make any payment specified
within Section VII of this Stipulation Order on or before the
date upon which the payment is due,
the Respondents will be in
default and the remainIng unpaid balance of the penalty or fees,
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.
Respondents also agree to retire all emissions credits
associated
with this facility as a result of its
closing/shutting down,
and shall issue such request to the Agency
-10-
within
30
days
of
the
Board
issuing
an
Order
accepting
this
Stipulation’.
VIII.
INTEREST ON PENALTIES
1.
Pursuant to Section 42(g)
of the Act,
415 ILCS 5/42(g),
interest shall accrue on any penalty amount owed by the
Respondents’ 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
case
caption
and
number,
and
the
Respondents’
Federal
Employer
Identification Numbers 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:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., ~
Floor
Chicago,
Illinois
60601
-11-
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
Respondents’
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
Respondents 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
s’ubject
matter
of
the
First
Amended
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
Respondents’
responsibility
to
comply
with
any
federal,
state or local regulations,
including but not limited to the Act
and Board regulations.
‘
-12-
XII.
RELEASE FROM LIABILITY
In consideration of the Respondents’ payments and retirement
of offsets as described in paragraph VII above,
and the
Respondents’
commitment to refrain from future violations of the
Act and Board regulations, Complainant releases, waives and,
discharges
the
Respondents
from
any
further
liability
or
penalties
for
violations
of
the
Act
and
regulations
which were
the
subject
matter
of
the
First
Amended
Complaint
herein,
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 or
heretofore undisclosed violations,
or obtain penalties with
respect thereto.
(THE REST OF THIS PAGE
IS LEFT INTENTIONALLY BLANK)
-13-
WHEREFORE,
Complainant and Respondents
request that the
Board adopt and accept the foregoing Stipulation and Proposal ,for
Settlement as written.
AGREED:
FOR THE COMPLAINANT:
LISA MADIGAN
Attorney General
of the State of Illinois
MATTHEW J. DUNN,
Chief
Environmental
Enforcement
Asbestos
Litigation
Division
FOR
THE
RESPONDENTS:
NATIONAL MATERIAL,
L.P.
By:
Title:
Dated:,
~4*~4J5~T
if.I~
/~~(u~L~
By:
ROSEMARIE CAZEAU,
Chief
Environmental
Bureau
Assistant
Attorney
General
Dated:.
NM HOLDING,
INC.
By:,
Title:
Dated:
‘
10— ii
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY~
By:_
Dated:
JOSEPH E. SVOBODA
Chief Legal Counsel
# 2276409_vi
WHEREFORE,
Complainant and Respondents request that the
Board adopt and accept the foregoing Stipulation and Proposal for
Settlement as written.
AGREED:
FOR THE COMPLAINANT:
LISA MADIGAN
Attorney General
of the State of Illinois
MATTHEW
J. DUNN,
Chief
Environmental Enforcement
Asbestos Litigation Division
By:
ROS~~Z~AU;”
~
Environmental Bureau
~
Assistant
Attorney
General
Dated:
Dated:____________
ILLINOIS ENVIRONMENTAL
ION
AGENCY
SEP”H E.
SVOBODA
Chief Legal Counsel
FOR
THE
RESPONDENTS:
NATIONAL
MATERIAL,
L.P.
By:~
Title:
Dated:
Dated:
NM HOLDING,
INC.
Title:
(
-14-
CERTIFICATE OF SERVICE
I,
PAULA BECKER WHEELER,
an Assistant Attorney General in
this case,
do certify that
I caused to be served this 19th day of
November,
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.
~A
~“~‘
PAULA
BECKER WHEELER
