flECE~vED

CLERK’S

OFFf CE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MAY

2

62005

STATEOF ILLINOIS

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

)

Pollution Control Board

Complainant,

)

vs.

)

No.

PCB

03-222

(Enforcement)

MECALUX ILLINOIS,

INC.,

a Delaware

corporation,

Respondent.

NOTICE OF FILING

PLEASE TAKE NOTICE that we have today, May 26,

2005,

filed

with the Office of the Clerk of the Illinois Pollution Control

Board an original and nine of the Stipulation and Proposal for

Settlement,

and Motion to Waive the Requirement of a Hearing,

copies of

which are attached herewith.

PEOPLE OF THE STATE OF ILLINOIS

BY:

LISA

of the

:sT0PHER

GRANT

s~’1stantAttorney General

~irironmentai Bureau

188 W. Randolph ~

~

Fir.

Chicago,

IL 60601

(312)

814-5388

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

p

)

No. PCB 03-222

~

~4C~

)

(Enforcement)

MECALUX

ILLJN~~~~!C.,

a

Delaware

corporation,

‘S

Responde~,~ç~

~~oa~d

MOTION’ TO REQUEST RELIEF FROM HEARING

REQUIREMEW.L’

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 requirement

of a hearing in this matter.

In.support thereof,

the Complainant states as follows:

1.

Along with this

Motion, Complainant

is filing a

Stipulation and Proposal for Settlement executed between

Complainant and Respondent, MECALUX ILLINOIS,

INC.

2.

Section 31 of the Act,

415 ILCS 5/31

(2002),

provides,

in

pertinent

part,

as

follows:

*

*

*

(c)

(2)

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

-1-

---

subsec.tion.

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 now scheduled in this matter.

4.

The Complainant,

PEOPLE. OF THE STATE OF ILLINOIS,

hereby requests relief from the requirement of a hearing pursuant

to 415 ILCS 5/31(c) (2)

(2002)

Respectfully Eubmitted,

PEOPLE

OF

THE

STATE

OF

ILLINOIS

by LISA

MADIGAN,

Attorney General of the

State of Illinois

MATTHEW

J.

DUNN,

?hief

Ep.~ir94mentalEnfjbrcement/Asbestos

IfitW~ionDivisijon

BY:

~

(

A

~

CH~S~PHER

GRANT

As~±~tant

Attorney General

Environmental Bureau

188 W. Randolph St.,

#2001

Chicago,

Illinois

60601

(312)

814-5388

-2-

---

CONTROL

BOARD

C,

c~.

)

No. PCB 03-222

(Enforcement)

MECALUX ILLINOIS,

INC.,

a Delaware

corporation,

)

Respondent.

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 the

Respondent,

MECALTJX

ILLINOIS INC.,

a Delaware 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 agreement.

Notwithstanding the previous sentence,

this Stipulation and

Proposal for Settlement and any Illinois Pollution Control Board

OF ILLINOIS,

-1~-

---

(“Board’s)

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(1)

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)

.

.

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.

I,”.

APPLICABILITY

This Stipulation and Proposal for Settlement shall apply to

and be binding upon the Complainant and the Respondent,

and each

of them,

and on any officer, director,

agent,

employee or servant

of the Respondent,

as well as the Respondent’s successors and

assigns.

The Respondent shall not raise as a defense to any

enforcement action taken pursuant to this settlement the failure

of officers, directors,

agents,

servants, or employees of the

-2--

---

Respondent to take such action as shall be required to comply

with the provisions of this Stipulation.

Iv.

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,

MECALUX

ILLINOIS,

INC.,

is a Delaware

corporation, duly authorized, to transact business in the State of

Illinois.

B.

Facility Description

The Respondent owns and operates a manufacturing facility

located at 1600 North 25th Avenue, Meirose Park, Cook County

Illinois

(“Site”).

At the Site the Respondent manufactures and

coats metal Storage system components.

C.

Noncompliance

Complainant has alleged the following violations of the Act

against the Respondent:

.

—3-

---

-COUNT

I:

VIOLATION OF VOM STANDARDS,

violation of 415 ILCS

5/9(a)

(2002),

and

35

Ill. Adm. Code Sections

218.204 and 201.141;

COUNT II: CONSTRUCTION WITHOUT A PERMIT, violation of 415

ILCS 5/9(b)

(2002), and 35

Ill. Adm. Code 201.142;

COUNT

III: VIOLATION OF LIFETIME OPERATING PERMIT CONDITION,

violation of 415

ILCS 5/9(b)

(2002);

COUNT IV: VIOLATION OF FESOP PERMIT CONDITION, violation of

415 ILCS 5/9(b)

(2002).

D.

Response to allec~ations

The Respondent neither admits nor denies the allegations in

the Amended Complaint.

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

-4-

---

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 violations alleged in

Counts

I,

III, and IV would be the discharge of excess volatile

organic material into the Chicago ozone non-attainment area.

The impact to the public from the violati~nsalleged in

Count

II would be to prevent Illinois EPA from reviewing plans

for conformance with Board and Illinois EPA engineering

requirements,

and monitoring construction of

a new emission

source through spot inspections.

2.

Social and Economic’ Benefit:

The parties agree that construction and operation of

Respondent’s.coatiflg lines,

if done in conformance with the Act,

Board regulations,

and Respondent’s permits,

is of social and

economic benefit.

3.

Suitability to the Area:

RespOndent’s facility is suitable

to the Site and the

surrounding area.

4.

Technical

Practicability:

Obtaining Illinois EPA permits prior to construction and

operation, using óompliant coatings at the Site, and operation

-5-

---

within the limits of Respondent’s permits,

is technically

practicable and economically reasonable.

5.

Subsequent Compliance:

The Respondent obtained a combined construction and

operating permit covering its hydro-soluble and catophoresis

coating lines on August ‘14,

2001,

and has agreed to use only

compliant coatings.

Respondent is preparing an application to

modify its FESOP Permit to reflect actual VOM emissions.

-

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

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

-6-

---

the. violator.

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.

ANALYSIS:

1.

Duration and Gravity of the Violation:

COUNT

I: Complainant has alleged that the violations

continued from approximately May 25,

2001 until August 14,

2001,

resulting in the use of 537 gallons of noncompliant coatings, and

slightly excessive emissions of VOM to the atmosphere for a

period of 81 days.

COUNT II: Complainant has alleged that the construction

permit violations continued from approximately November 21,

2000

until .August

14,

2001,

and operating permit violations from May

25,

2001, until August

14,

2091.

The result of the alleged

violations would be unpermitted construction, and unpermitted

operation of an emission source for period of 81 days.

COUNT III: Complainant has alleged that the violations

continued from August 14,

2001 until April

1,

2003, when

Respondent’s Lifetime Operating Permit was superceded by its

FESOP permit, resulting in emission of VOM exceeding permitted

-7-

---

levels during this period.

COUNT IV: Complainant has alleged that .the violations

continued from April

1,

2003 until the date of filing this

Stipulation, resulting in emissions of VOM exceeding permitted

levels.

2.

Diligence of Respondent:

The

Respondent

was

diligent

in

obtaining

an

‘as

built’

combined construction and operating permit for its hydro-soluble

and catophoresis coating lines.

3.

Economic ‘Benefit of Noncompliance:

Although Complainant alleges that the Respondent failed to

timely obtain construction and operating permits for its

facility,

the Respondent did eventually apply for and obtain

these permits, and thus did not avoid related costs.

Also,

the

Respondent did not avoid any emission-control related,

expenditures.

The Parties believe that the proposed penalty more

than recovers any economic benefit derived by the Respondent from

the alleged noncompliance.

4.

Deterrence:

A penalty of Forty Five Thousand Dollars

($45,000.00)

against

the

Respondent

will

deter

future

noncompliance

by

the

Respondent

and

others.

5.

Compliance History:

The

Respondent

has

no

previously

adjudicated

violations

of

—8-

---

the

Act

and/or

Board

Regulations.

6.

Voluntary self-disclosure:

Self-disclosure

is

not

at

issue

in

this

matter.

7.

.

Supplemental Environmental Project

No ‘SEP has been proposed by the Respondent.

VII.

TERMS

OF

SETTLEMENT

A.

Civil Penalty

1.

The

Respondent

shall

pay

a

penalty

of

Forty

Five

Thousand Dollars

($45,000.00)

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

(“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.

The Respondent’s Federal Employer Identification Number

(“FEIN”) shall be written on the face of each certified check or

money order.

For issues relating to the payment of the penalty,

the

Respondent

may

be

reached

at

the

following

address:

c/o

Richard

Saines

Baker & McKenzie

LLP

One Prudential Plaza,

Suite 3500

-9-

---

130 East Randolph Drive

,

Chicago,

Illinois 60601

A copy of the certified check or money order,

and all

related correspondence,

shall be sent by first class mail to:

Christopher Grant

Assistant Attorney General

Environmental Bureau

188 West Randolph,

~

Flr.

Chicago,

Illinois 60601

3.

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)

4.

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.

5.

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.

6.

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 FEIN ‘shall appear on the

face of the certified check or money order.

A copy of the

dertified check or money order and the transmittal letter shall

be sent to:

-10-

---

Christopher Grant

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th

Floor

Chicago, Illinois 60601

B. Future Compliance

1.

.

No later than 30 days after the date on which the Board

adopts a final order approving this Stipulation and Proposal for

Settlement,

the Respondent shall submit to Illinois EPA its

application for a modified FESOP to ensure that permitted

emissions from the facility are representative of current coating

usage and material specifications.

Upon request,

the Respondent

shall provide any and all additional information required by

Illinois EPA for the purpose of evaluating Respondent’s

application.

C.

Stipulated Penalties

1.

If the Respondent fails to complete any activity by the

dates specified in Section VII.B. of this Stipulation and

Proposal for Settlement by the date set forth therein,

the

Respondent shall provide notice to the Complainant of each

failure to comply with this Stipulation and Proposal for

Settlement.

In addition,

the Respondent shall pay to the’

Complainant,

for payment into the EPTF,

stipulated penalties per

violation for each day of violation in the amount of .Two Hundred

Fifty Dollars

($250.00) until

such time that compliance is

achieved.

-11-

---

2.

Following

the

Complainant’s

determination

that,

pursuant

to

Section

VII.B,

the

Respondent

has

failed

to

complete

performance

of

any

task

or

other

portion

of

work,

or

failed

to

provide a required submittal,

including any report or

notification,

Complainant

may

make

a

demand.

for

stipulated

penalties upon the ‘Respondent for its noncompliance with Section

VII.B

of

this

Stipulation

and

Proposal

for

Settlement.

Failure

by

the

Complainant

to

make

this

demand

shall

not

relieve

the

Respondent of

t.he obligation to pay stipulated penalties.

3..

All

penalties

owed

the

Complainant

under

this

section

of

this

Stipulation

and

Proposal

for

Settlement

that

have

not

been

paid

shall

be

payable

within

thirty

(30)

days

of

the

date

the

Respondent knows or should have known of its noncompliance with

any

provision

of

Section

VII.B

of

this

Stipulation

and

Proposal

for Settlement.

4.

a.

All

stipulated

penalties

shall

be

paid

by

certified

check

or

money

order

payable

to’

the

Illinois

EPA

for

deposit

in

the

EPTF

and

delivered

to:

Illinois

Environmental

Protection

Agency

Fiscal

Services

1021

North

Grand

Avenue

East

P.O. Box 19276

Springfield, Illinois 62794-9276

b.

The name and number of the case and the

,

Respondent’s

FEIN

number

shall

appear

on

the

face

of

the

check.

A copy of the check(s) and the transmittal letter shall be sent

-12-

---

to:

Christopher

Grant

Assistant Attorney General

Environmental

Bureau

188

W.

Randolph

St.,

20th

Floor

Chicago,

Illinois

60601

5.

The

stipulated

penalties

shall

be

enforceable

by

the

Complainant

and

shall

be

in

addition

to,

and

shall

not

preclude

the

use

of,

any

other

remedies

or

sanctions

arising

from

the

failure

to

comply

with

this

Stipulation

and

Proposal

for

Settlement.

CEASE AND DESIST

The

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.

Ix.

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

regulations,

including

but

not

limited

to

the

Act

and

Board

regulations.

x.

Thousand Dollar

($45,000.00) penalty,

its compliance with the

-13-

---

provisions

listed

in

Section

VII.B,

and

its

commitment

to

cease

and desist from future violations,

the Complainant releases,

waives and discharges the Respondent from any further liability

or penalties for violations of the Act and Board Regulations that

were the subject matter of the Complaint herein.

The release set

forth above does not extend to any matters other than those

expressly specified in the Amended Complaint filed on October 18,

2004.

The Complainant reserves, and this Stipulation

is. without

prejudice to, all rights of the State of Illinois against the

Respondent with respect to all other matters, including but not

limited to,

the following:

a.

criminal liability;

b.

liability for future violation of state,

federal,

local,

and common laws and/or regulations;

c.

liability for natural resources damage arising out of

the alleged violations; and

d.

liability or claims based on the Respondent’s failure

to satisfy the requirements of this Stipulation.

Nothing in this Stipulation is intended as a waiver,

discharge,

release, or covenant not to sue for any claim or cause

of action, administrative or judicial,

civil or criminal, past or

future,

in law or

in’ equity, which the State of Illinois or the

Illinois EPA may have against any person,

as ‘defined by Section

3.315

of the Act,

415 ILCS 5/3.315(2002), or entity other than

-14-

---

the Respondent’.

‘

‘

‘

WHEREFORE,. Complainant and the Respondent request that the

Board adopt ,and accept the foregoing Stipulation and Proposal for

Settlement

as’ written.

AGREED:,

FOR

TH~COMPLAINANT:

‘LISA MADIGAN

AttorneY’ General of

the .State,of Illinois

Matthew

J.

Dunn,

Chief.

Environmental

Enforcement!

Asbest

Litigation Division’

~,‘

EMARI

,

ZF.AU~

f

En

onmental Bur~au

Assistant Attorney General

‘

..t

-,~

Dated:

.~2~’7

¶35

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY

.

By:

______

WILLIAM

D. INGERSO~1L,

Acting.

Chief Legal Counsel

Dated:

~

~

V

-15-

---

the

Respondent.

WHEREFORE,

Complainant, and the Respondent 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

/

Asbesp-s- Litigation Divi

~

onmental Buré’~.

Assistant Attorney General

Dated:

‘~

ILLINOIS ENVIRONMENTAL

PROTECTION AGENC

By:

WILLIAM

D.

INGERSO~~L,

Acting Chief Legal Counsel

Dated:

-15-

---

FOR RESPONDENT MECALUX ILLINOIS,

INC.

BY:

,

Title:

-

Dated:

~-

)~

c25

-16-

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

vs.

‘

)

No. PCB 03-222

‘(Enforcement)

MECALUX ILLINOIS,

INC.,

a Delaware

corporation,

Respondent.

CERTIFICATE OF SERVICE

I, CHRISTOPHER GRANT,

an attorney,

do certify that I caused

to be served this 26th day of May,

2005,

the Stipulation and

proposal for Settlement and Motion to Waive the Requirement of

Hearing upon

the persons listed below, by first class mail, by

placing

same

in

an

envelope

bearing

sufficient

postage

wi th

the

United

States

Postal

Service

located

at

100

W.

Randolph,

Chicago

Illinois

and

addressed

to:

Service List:

Mr. Richard Saines

Baker & McKenzie LLP

130 East Randolph Drive

Chicago,

IL 60601

Hearing Officer Bradley P. Halloran

Illinois Pollutioi~Control Board

hand

delivery

CHRISTOPHER

GRANT