BEFORE THE ILLINOIS POLLUTION CONTROL BOABJL
r~
~vED
LISAPEOPLEMADIGAN,OF
THE STATEAttorneyOFGeneralILLiNOIS,of
ex rel.
))
~E
MAY 312005
OFFICE
the State of Illinois
)
STATE OF ILLINOIS
Complainant,
V.
)))
(EnforcementPCB No. 04-194
-
Water)
pollution Control Board
)
DUR-O-WAL, INC., an Illinois Corporation,
)
)
)
Respondent
)
NOTICE OF FILING
TO:
See Attached Service List.
PLEASE TAKE NOTICE that on May 31, 2005, the People ofthe State ofIllinois filed
with the Illinois Pollution Control Board a Stipulation and Proposal for Settlement and Motion
forRelief from Hearing Requirement, true and correct copies ofwhich are attached and hereby
served upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
________________
BRiDGET M. CARLSON
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street, Suite 2001
Chicago, Illinois 60601
(312) 814-0608
THIS FILING IS SUBMITFED ON RECYCLED PAPER
SERVICE LIST
Ivis::Jenniferi~jthan
Winston and Strawn
35
West Wacker Drive
Chicago, Illinois 60601-9703
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECERVED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
)
LISA MADIGAN, Attorney General of
)
MAY
312005
the State ofIllinois
)
STATE OF fLUNOIS
Pollution Control Board
Complainant,
)
PCB No. 04-194
)
(Enforcement
-
Water)
v.
)
)
DUR-O-WAL, INC., an illinois Corporation,
)
)
)
Respondent
)
MOTION FOR RELIEF FROM
HEARING
REQUIREMENT
NOW. COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General ofthe State ofIllinois, and pursuant to Section 31 (c)(2) ofthe
Illinois Environmental Protection Act (“Act”), 415 ILCS
5!3
1(c)(2)(2002), moves that the
Illinois Pollution Control Board (“Board”) grant the parties in the above-captioned matter relief
from the hearing requirement imposed by Section 31(c)(1) ofthe Act, 415 ILCS
5!31(c)(1)(2002). In support ofthis motion, Complainant states as follows:
1.
The Complaint in this matter alleges: Water Pollution in violation ofSection 12(a)
of the Act, 415 ILCS 5!12(a)(2002), and Sections 304.105 and 304.124 ofthe Board Water
Pollution Regulations, 35 Ill. Adm. Code 304.105, and 35 Ill. Adm. Code 304.124; Operation of
a Facility Causing Water Pollution Without a Permit, in violation ofSection 12(b) ofthe Act,
415 ILCS 5!12(b)(2002), and Section 304.141(b) ofthe Board Water Pollution Regulations, 35
Ill. Adam Code 304.141(b); and aNPDES Storm Water Permit Violation, in violation ofSection
12(f) ofthe Act, 415 ILCS 5!12(f)(2002), and Section 309.102(a) of the Board Water Pollution
Regulations,
35
Ill. Adm. Code 309.102(a).
:2
~Gomp1ainantis filing this Motion and a Stipulation and Proposal for Settlement
with the Bo4rd.
3.
The parties have reached agreement on all outstanding issues in this matter.
4.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement filed this same date.
5.
All parties agree that a hearing on the Stipulation and Proposal for Settlement is
not necessary, and respectfullyrequest relief from such a hearing as allowed by Section 31 (c)(2)
ofthe Act, 415 ILCS
5!31(c)(2)(2002).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLiNOIS, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(1) ofthe Act, 415 ILCS 5!31(c)(1)(2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLiNOIS
LISA MADIGAN
Attorney General
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
~o~’Vhii
~
BRIDG~M. CARLSON
Assistant Attorney General
Environmental Bureau
188W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-0608
DATE:May3l,2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR
CLERK’S
E
C E
OFFICE
IV E D
PEOPLE OF THE STATE OF ILLINOIS, ex rel.
)
MAY
31200
LISA MADIGAN, Attorney General ofthe State
)
ofIllinois
)
STATE OFILLINOIS
)
Pollution Control Board
Complainant,
)
)
PCB No. 04-194
v.
)
)
(Enforcement
-
Water)
)
DUR-O-WAL, INC., an Illinois Corporation,
)
)
Respondent
)
)
)
STIPULATION
AND
PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLiNOIS, by LISA MADIGAN, Attorney
General of the State ofIllinois and DUR-O-WAL, INC., a Division ofDayton Superior
Corporation, also an Illinois Corporation, (“Respondent”), have agreed to the making ofthis
Stipulation and Proposal for Settlement (“Stipulation”) and submit it to the Illinois Pollution
Control Board (“Board”) for approval. The parties agree that the statement of facts contained
herein represents a fair summary ofthe evidence and testimony which would be introduced by
the State ofIllinois if a 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 thefact that a
party has entered into this Stipulation, nor any ofthe facts stipulated herein, shall be introduced
into evidence in any other proceeding regarding the claims asserted in the Complaint except as
otherwise provided herein. Ifthe Board approves and enters this Stipulation, Respondent agrees
to be bound by the Stipulation and Board Order and not to contest their validity in any
subsequent proceeding to implement or enforce their terms,
•
I.
~RISDICTION
‘the BdaM has jurisdiction ofthe subject matter herein and ofthe parties consenting
hereto pursuant to the Illinois Environmental Protection Act (“Act”), 415
ILCS
5/1 et seq.
(2002).
II.
AUTHORIZATION
The undersigned representatives for eachparty certify that they are fully authorizedby the
party whom they represent to enter into the terms and conditions ofthis Stipulation and to legally
bind them to it.
III.
STATEMENT OF FACTS
A.
Parties
1.
On May 6, 2004, a Complaint was filed on behalf ofthe People ofthe State of
Illinois by Lisa Madigan, Attorney General ofthe State of Illinois, on her own motion pursuant to
the terms and provisions ofSection 31 ofthe Act, 415 ILCS 5/31(2002), against the Respondent.
2.
At all times relevant to the Complaint, Respondent was and is an Illinois
corporationthat is authorized to transact business in the State ofillinois.
2
B.
Site Description
I.
At all times relevant to the Complaint, Respondent owned and operated a wire
drawing, fabrication and zinc galvanizing facility located at
625
Cram Street, Aurora, Kane
County, Illinois (“Site”).
2.
Respondent’s facility operates under Illinois Environmental Protection Agency
(“EPA”) general storm water permitNo. 1LR00545 1 pursuant to the National Pollutant
Discharge Elimination System (“NPDES”).
3.
•
The provisions and conditions ofRespondent’s NPDES Permit No. 1LR005451 do
not permit Respondent to discharge wastewater that contains lead, zinc, iron, chromium, total
suspended solids or low pH levels from its facility to a stonn sewer.
4.
Complainant alleges that residential properties are present adjacent to the north
and west ofRespondent’s facility. These properties consume groundwater through the operation
ofresidential wells.
5.
The processes at Respondent’s facility include wire drawing, fabrication, and zinc
galvanizing.
6.
Respondent utilized a valve pit at its facility in connection with its zinc.
galvanizing process.
7.
On or aboutMarch 27, 1998, until at least April 8, 1998, Respondent’s valve pit
began to fill with wastewater. On or about April 6, 1998, Respondent employed a mobile pump
to discharge an unspecified volume ofwastewater from its valve pit to a storm sewer located
adjacent to its facility.
3
8.
Complainant alleges that on April 8, 1998, arepresentative ofthe Fox Metro
Water Reclamation District observed Respondent dischargingwastewater to the adjacent storm
sewer and instructed Respondent to cease discharging. Respondent asserts that it ceased its
discharge ofwastewater to the storm sewer on the morning ofApril 8, 1998.
9.
On April 7, 1998, prior to ceasing its discharge, Respondent collected a sample of
the wastewater present in the valve pit for laboratory analysis. The laboratory analysis detected
the presence oflead, zinc, iron, chromium, total suspended solids and low pH levels in the
discharged wastewater (“contaminants”). The concentrations of the contaminants of concern at
Respondent’s site in the wastewater sample collected from the wastewater discharge on April 7,
1998 exceeded limitations ofeffluent standards as describedin Section 3 04.105, 35 Ill. Adm.
Code 304.105.
C.
Allegations
of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
Count I:
•
Water Pollution, in violation ofSection 12(a) ofthe Act, 415 ILCS
5/12(a) (2002), and Sections 304.105 and 304.124 ofthe Board Water
Pollution Regulations, 35111. Adm. Code 304.105, and 35 Iii. Adm. Code
304.124.
Count II:
OperationofFacility Causing Water Pollution Without a Permit, in
violation ofSection 12(b) ofthe Act,
415
ILCS 5/12(b) (2002), and
Section 304.141(b) ofthe Board Water Pollution Regulations, 35 Ill.
Adm. Code 304.141(b).
4
Count ifi:
NPDES Storm Water PermitViolation, in violation ofSection 12(f) of
the Act, 415 LCS
5/12(f)
(2002), and Section 309.102(a) ofthe Board
Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
D.
Admission
ofViolations
The Respondent neither admits nor denies the violation(s) alleged in the Complaint filed
in this matter and referenced herein.
E.
Compliance Activities to Date
1.
Respondent repaired the leak in the valve pit that was the source ofthe
contaminated wastewater discharged to the environment, Respondent disconnected the valve,
sealed the outgoing lines with cement, and reconfigured the lines so that process waternow flows
through overhead lines.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the Respondent,
and any officer, director, agent, or employee ofthe Respondent, as well as any successors or
assigns ofthe Respondent. The Respondent shall notraise as a defense to any enforcement
action taken pursuant to this Stipulation the failure ofany ofits officers, directors, agents,
employees or successors or assigns to take such action as shall be requiredto comply with the
provisions of this Stipulation.
5
No change in ownership, corporate status or operator ofthe facility shall in any way alter
the responsibilities ofthe Respondent under this Stipulation and Proposal for Settlement. In the
event ofany conveyance oftitle, easement or other interest in the facility, the Respondent shall
continue to be bound by and remain liable~forperformance of all obligations under this
Stipulation.
V.
COMPLIANCE WITH OTHER LAWS
AND
REGULATIONS
This Stipulation in no way affects the responsibilities ofthe Respondent to comply with
any other federal, state or local laws or regulations including, but not limited to, the Act and the
Board regulations, 35 Ill. Adm. Code, Subtitles A through H.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-
COMPLIANCE
Section 33(c) ofthe 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 ofthe emissions,
discharges, or deposits involved including, but not limited to:
1.
the character and degree ofinjury to, or interference with the protection of
the health, general welfare and physical property ofthepeople;
2.
the social and economic value ofthe pollution source;
3.
the suitability or unsuitability ofthe pollution source to the area in which it
is located, including the question ofpriority oflocation in the area
involved;
4.
the technical practicability and economic reasonableness ofreducing or
eliminating the emissions, discharges or deposits resulting from such
pollution source; and
6
5.
any subsequent compliance.
In response to these factors, the Complainant states the following:
1.
Human health and the environment were threatened by the improper
release ofwastewater to the environment.
2.
There is a social and economic value ofthe pollution source in Kane
County, Illinois, The facility is an Illinois corporation in good standing.
3.
Operation ofthe facility was suitable for the area in which it occurred.
4.
The emission source at issue was sealed to prevent future releases similar
to the release which occurred in this matter. Sealing the source was a
technically and economically practical solution,
5.
Respondent has subsequently complied with the Act and the Board
Regulations. To ensureno further leakage occurred in the process lines
entering the valve pit, Respondent reconfigured its pipes so that
wastewater would flow through overheadpipes rather than through the
valve pit. The valve pit was taken out of service and the associated
process lines were sealed with cement.
VII.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) ofthe 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 ofrecord in mitigation or aggravation
ofpenalty, including but notlimited to the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence ofdue diligence on the part ofthe respondent in
attempting to comply with requirements ofthis Act and regulations
thereunder or to secure relief therefrom as provided by this Act;
3.
any economic benefits accrued by the respondent because ofdelay in
compliance with requirements, in which case the economic benefits shall
be determined by the lowest cost alternative for achieving compliance;
7
4.
the amount ofmonetary penalty whichwill 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 ofpreviouslyadjudicated
violations ofthis Act by the respondent;
6.
whether the respondent voluntarily self-disclosed, in accordance with
subsection i ofthis Section, the non-compliance to the Agency; and
7.
whether the respondent has agreed to undertake a “supplemental
environmental project,” which means an enviromnentally beneficial
project that a respondent agrees to’ undertake in settlement ofan
enforcement action brought under this Act, butwhich the respondent is not
otherwise legally required to perform.
In response to these factors, the Complainant states as follows:
The
Respondent discharged wastewater contaminants; including zinc, lead, and
chromium to a storm sewer without a permit. This wastewater, in turn, discharged
to an unknown tributary ofthe Fox River. The violations began on or around
March 27, 1998, and continued until at least April 8, 1998. The gravityofthe
offense is serious as Respondents caused the unauthorized discharge of
wastewater.
2.
In improperly discharging wastewater contaminants into a storm sewer without a
permit over the course of several days, the Respondent demonstrated an absence
ofdiligence to comply with the Act and Boardregulations. Dur-O-Wal did
exercise due diligence in returning to compliance by hiring a waste hauler to
remove its remaining process wastewater once they were advised to discontinue
the release.
3.
Due to this violation, the Respondent may have gained financial benefit by not
accruing the costs associated with properly transporting and disposing ofthe
wastewater. The civil penalty obtained herein exceeds any financial benefit that
Respondent may have accrued.
4.
Complainant has determined, and Respondent has agreed, based upon the specific
facts ofthis matter, that a civil penalty will serve to deter further violations and
aid in future voluntarycompliance with the Act and Board regulations.
8
5.
To Complainant’s knowledge, Respondent has no previously adjudicated
violations ofthe Act.
6.
The Respondent did not self-disclose the violations.
7.
The settlement ofthis matter does not include a supplemental environmental
project.
VIH. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum ofThirty-Thousand Dollars
($30,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
The penalty described in this Stipulation shall be paid by certified check, money order or
electronic funds transfer payable to the Illinois Attorney General’s Office, designated to the
“Illinois Attorney General’s State Projects and Court Ordered DistributionFund” to be used at
the discretion ofthe Illinois Attorney General’s Office for the advancement ofthe environmental
protection activities in Illinois and shall be sent overnight mail to:
RoseMarieCazeau
Chief, Environmental Bureau
Illinois Attorney General’s Office
188 West Randolph Street
20th
Floor
Chicago, Illinois 60601
The name and number ofthe case and Respondent’s Federal Employer Identification Number
(FErN), 31-0676346, shall appear on the check. A copy ofthe certified check, money order or
record ofelectronic funds transfer and any transmittal letter shall be sent to:
9
Ms. Bridget Carison
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
2.
Pursuant to Section 42(g) ofthe Act, 415 TLCS
5/42(g)
(2002), interest shall
accrue on any payment notpaid within the time period prescribed above at the maximum rate
allowable under Section 1003(a) ofthe illinois Income Tax Act, 35 ILCS 5/1003 (2002). Interest
on any unpaid payment shall begin to accrue from the date the payment is due and continue to
accrue until the date payment is received. When partial payment(s) are made, such partial
payment shall be first applied to any interest on unpaid payment then due and owing. All interest
on payment owed shall be paid by certified check, money order or electronic funds transfer,
payable to the Illinois Attorney General’s Office, designated to the Illinois Attorney General’s
Court Ordered and Voluntary Compliance Payment Projects Fund and delivered to the address
and in the manner described above.
3.
For purposes ofpayment and collection, Respondent maybe reached at the
following address:
Ms. Jennifer Nijman
Winston and Strawn
35
West Wacker Drive
Chicago, Illinois 60601-9703
4.
In the event of default of this Section VIll.A, the Complainant shall be entitled to
all available relief including, but not limited to, reasonable costs of collection and reasonable
attorney’s fees.
10
B.
Future
Use
Notwithstanding any other language in
this
Stipulation to the contrary, and in
consideration ofthe mutual promises and conditions contained in this Stipulation, including the
Release from Liability contained in Section VIILD, below, the Respondent hereby agrees that
this Stipulation may be used against the Respondent in any subsequent enforcement action or
permit proceeding initiated within ten (10) years from the date ofthe Board order accepting this
Stipulation as proof of apast adjudication ofviolation of the Act and the Board Regulations
promulgated thereunder for all violations alleged in the Complaint in this matter, forpurposes of
Section 39(a) and (i) and/or 42(h) ofthe Act, 415 ILCS
5/39(a)
and (i) and/or 5/42(h)(2002) for a
period not to exceed ten (10) years from the date ofentry of this stipulation. Further, Respondent
agrees to waive any rights to contest, in any such subsequent enforcement action or permit
proceeding, any allegations that these alleged violations were adjudicated.
C.
Cease and Desist
1.
The Respondent shall cease
and desist from future violations ofthe Act and Board
Regulations that
were the subjectmatter ofthe Complaint as outlined in Section ffl.C
(“Allegations OfNon-Compliance”) ofthis Stipulation.
2.
Respondent shall abide by all permit provisions as detailed in the NPDES permit
issued to the facilityby the IEPA, as amended.
D.
Release from Liability
11
In consideration oftheRespondent’s payment ofthe $30,000.00 penalty and anyspecified
costs and accrued interest, completion ofall activities required hereunder, commitment to Cease
and Desist as contained in Section Vffl.C and upon the Pollution Control Board’s acceptance and
approval of the terms ofthis Stipulation andProposal for Settlement, the Complainant releases,
waives and discharges the Respondent from any further liability orpenalties for violations ofthe
Act and Board Regulations that were the subject matter ofthe Complaint herein. The release set
forth above does not extend to anymatters other than those expressly specified in Complainant’s
Complaint filed on May 6, 2004. The Complainant reserves, arid this Stipulation is without
prejudice to, all rights ofthe State ofIllinois against the Respondent with respect to all other
matters, including but not limited to, the following:
a.
criminal liability;
b.
liability for future violation ofstate, federal, local, and common laws and/or
regulations;
c.
liability for natural resources damage arising out ofthe alleged violations; and
d.
liability or claims based on the Respondent’s failure to satisf~’the requirements of
this Stipulation.
Nothing in this Stipulation is intended as awaiver, 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 ofillinois or the illinois BPA may have against anyperson, as
defined by Section 3.315 of’ the Act, 415 ILCS 5/3.315, or entity other than the Respondent.
12
E.
Right ofEntry
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 entryinto and upon
the Respondent’s facilitywhich is the subject ofthis 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.
F.
Correspondence, Reports and Other Documents
‘Any
and all correspondence, reports and any other documents required under this
Stipulation, except for payments pursuant to Section V1I.A (“Penalty Payment”) ofthis
Stipulation shall be submitted as follows:
As to the Complainant
Ms. Bridget Carlson
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, illinois 60601
As to the Respondent
Ms. JenniferNijman
Winston and Strawn
35 West Wacker Drive
Chicago, illinois 60601-9703
13
G.
Enforcement ofBoard Order
1.
Upon the entry ofthe Board’s Order approving and accepting this Stipulation
and
Proposal for Settlement, that Order is a binding and enforceable order ofthe Illinois Pollution
Control Board and maybe enforced as such through any and all available means.
2.
Respondent agrees that notice ofany subsequent proceeding to enforce the Board
Order approving and accepting this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement ofservice ofprocess.
3.
The parties agree that, ifthe Board does not approve and accept this Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein.
4.
It is the intent.ofthe Complainant and Respondent that the provisions ofthis
Stipulation and Proposal for Settlement and any Board Order accepting and approving such shall
be severable, and should any provision be declared by a court ofcompetent jurisdiction to be
inconsistent with state or federal law, and thereforeunenforceable, the remaining clauses shall
remain in full force and effect.
14
WHEREFORE, Complainant andRespondent request that the Board adopt and accept the
foregoing Stipulation and Proposal fOr Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State ofillinois
MATTHEW J. DUNN, Chief
Environmental Bnforcement/
Asbestos Litigation Division
BY:
DUR-O-WA3~INC
,
I~/
~_---~‘
BY:
‘1
~-.
Name:~3’/e.,x”v-~
C. /‘/~rI~
Title: ~
‘~~‘c’~~”
DATE: ~/~t’~ /o~xc
Assistant Attorney General
DATE:
5/
7-~
15
CERTIFICATE OF SERVICE
I, BRiDGET M. CARLSON, an Assistant Attorney General,certify that on the 31stday
ofMay 2005, I caused to be served by First Class Mail the foregoing Stipulation and Proposal
for Settlement and Motion for Relief from Hearing Requirement to the parties named on the
attached Service List, by depositing same in postage prepaid envelopes with the United States
Postal Service located at 100 West Randolph Street, Chicago, Illinois 60601.
BRIDGE~i’
‘~i~tW~
M. CARLSON
~
