Lisa Madigan
ATTORNEY GENERAL
CLERK’S 0:
JUL
07
2005
STATE OF ILLINOIS
OFFICE
OF THE ATTORNEY GENERAL
Pollution Control Board
STATE OF ILLINOIS
The
Honorable Dorothy Gunn
Illinois
Pollution Control
Board
James
R.
Thompson Center,
Ste.
11-500
100 West Randolph
Chicago,
Illinois 60601
July 5,
2005
Re:
People
v.
GKN Aerospace North America,
Inc.
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies of
a
NOTICE
OF
FILING,
COMPLAINT and
STIPULATION AND
PROPOSAL
FOR SETTLEMENT in
regard
to the above-
captioned matter.
Please file the originals and return file-stamped copies of the documents to our
office
in
the enclosed,
self-addressed envelope.
Thank you for your cooperation and
consideration.
KL/pp
Enclosures
500 South
Second
Street, Sprii~gfl~td,
Illinois
62706
•
(217)
782-1090
•
TTY:
(2(7)
785-27!
•
Fax:
(217) 782-7046
100
West Ra~~ph
Street,
Chicago, Illinois
6(1601
•
t312)
814-3000
•
TTY:
(312)
814-3374
•
Fax:.~312)
814-3806
1001
r
ist
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1lltn~t~
£i2901
1611,)
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(61 ~)
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~9 641
(
Very
Kristen L~y4’hridge
Environrn’~ntalBureau
500
South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
BEFORE THE
ILLINOIS POLLUTION CONTROL BO~~CF
4~.
CLERK’S O~(;~
PEOPLE OF THE
STATE OF
)
ILLINOIS,
)
JUL
072005
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
vs.
)
PCB
No.
GKN AEROSPACE NORTH AMERICA,
INC., a Delaware corporation,
Respondent.
NOTICE OF FILING
To:
Robert
F.
Wilkinson
Husch & Eppenberger,
LLC
190
Carondelet Plaza, Suite 600
St. Louis,
MO
631 05-3441
PLEASE TAKE
NOTICE that on
this date
I mailed for filing with the Clerk of the Pollution
Control
Board
of the
State
of Illinois,
a
COMPLAINT,
MOTION
FOR
RELIEF
FROM
HEARING
REQUIREMENT
and
STIPULATION AND
PROPOSAL
FOR
SETTLEMENT,
a copy of which is
attached
hereto and
herewith
served
upon you.
Respecifully submitted,
PEOPLE OF THE
STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State of
Illinois
MATTHEW J.
DUNN, Chief
ARISTE~LA~HRIp.GEr
Assista~Atforney
~ef~l
Environmental Bureau
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
July 5,
2005
CERTIFICATE OF SERVICE
I
hereby certify that
I
did on
July 5,
2005, send
by
First Class
Mail, with
postage thereon
fully prepaid,
by depositing
in a
United
States Post Office
Box a true
and
correct copy of the
following instruments entitled NOTICE
OF FILING,
MOTION
FOR RELIEF FROM
HEARING
REQUIREMENT
and STIPULATION AND
PROPOSAL
FOR SETTLEMENT:
To:
Robert F. Wilkinson
Husch
& Eppenberger,
LLC
190 Carondelet
Plaza, Suite 600
St. Louis,
MO 631 05-3441
and the original and
ten copies
by
First Class
Mail with
postage thereon fully prepaid
of the
same foregoing instrument(s):
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
James
R.
Thompson Center
-
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
~RIST~NT~HRID
Assist~w~i4torney
G
ner
This filing is submitted
on
recycled paper.
RKS OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
JUL
072005
PEOPLE OF THE
STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCBNO.~)(p
)
GKN AEROSPACE
NORTH AMERICA, INC.
)
a Delaware corporation,
)
Respondent.
MOTION
FOR
RELIEF FROM
HEARING
REQUIREMENT
NOW
COMES Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA
MADIGAN,
Attorney General of the State of Illinois,
and pursuant to
Section
31 (c)(2) of the
Illinois
Environmental Protection Act
(“Act”), 415
ILCS 5/31 (c)(2) (2002),
moves that the
Illinois
Pollution
Control Board grant the
parties
in the above-captioned matter reHef from the hearing
requirement imposed
by
Section 31 (c)(1) of the Act, 415 ILCS
5/31 (c)(1) (2002).
In
support of
this motion,
Complainant states as follows:
1.
A
Complaint is being filed
with the Board,
alleging violations by the Respondent
of the Illinois
Environmental
Protection Act and
Board
Regulations.
2.
The parties
have reached
agreement on all outstanding
issues
in this matter.
L
3.
This agreement is presented
to the Board
in a
Stipulation and Proposal for
Settlement, filed
contemporaneously with
this motion.
4.
All
parties agree that a
hearing
on the Stipulation and
Proposal for Settlement is
not necessary, and
respectfully request relief from such a
hearing
as allowed by Section
31 (c)(2) of the Act, 415
ILCS 5/31 (c)(2) (2002).
1
WHEREFORE, Complainant, PEOPLE
OF THE
STATE OF
ILUNOIS,
hereby requests
that the Board grant this motion for relief from the hearing
requirement set forth
in Section
31(c)(1) of the Act, 415 ILCS
5/31(c)(1) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J.
DUNN, Chief
Environmental Enforc~nent/Asbestos
500
South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated: July 5, 2005
Assistant Attorney General
2
RECE~VED
ILLINOIS POLLUTION
CONTROL
BOARD
CLERK’S OFFICE
JUL07
2005
PEOPLE OF THE STATE
OF ILLINOIS,
)
STATE OF ILLINOIS
ex rel.
LISA MADIGAN, Attorney
)
Pollution Control
Board
General of the State of Illinois,
)
Complainant,
S
vs.
)
f~~5-PCB-
)
(Enforcement
-
Land)
GKN AEROSPACE
NORTH AMERICA,
INC.,
)
a Delaware corporation,
)
Respondent.
)
COMPLAINT
The PEOPLE OF THE
STATE OF
ILLINOIS,
ex ref.
LISA MADIGAN, Attorney
General
of the State of Illinois, on her own
motion
and
at the request of the
ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY!
complains of the Respondent, GKN
AEROSPACE NORTH AMERICA,
INC., a Delaware corporation,
as follows:
COUNT
I
HAZARDOUS WASTE VIOLATIONS
1.
This Complaint
is brought
by the Attorney General on her own motion
and
at the
request of the Illinois
Environmental Protection Agency (“Illinois EPA”),
pursuant to the terms
and
provisions of Section
31
of the
Illinois
Environmental Protection Act (“Act”),
415
LOS 5/31
(2002).
2.
The
Illinois EPA is an agency of the State
of Illinois created
by the Illinois
General Assembly
in
Section 4 of the Act, 415 ILCS 5/4 (2002),
and charged,
inter a/ia,
with the
duty of enforcing the Act in
proceedings before the
Illinois Pollution Control
Board
(“Board”).
1
3.
The Complaint is brought pursuant to
Section
31
of the Act, 415 ILCS
5/31
(2002), after providing the Respondent with
notice and
opportunity for a meeting with the Illinois
EPA.
4.
The
Respondent, GKN
AEROSPACE NORTH AMERICA,
INC.
(“GKN”),
is a
Delaware corporation, which owns
and operates GKN
Aerospace
Services
-
St. Louis located at
142 JS McDonnell
Boulevard,
Hazelwood, St. Louis County,
Missouri.
GKN
is an aerospace
company.
The Hazelwood
facility’s
Illinois
EPA identification number is
9290019999.
5.
The Respondent is a one-time generator of both
non-hazardous contaminated
soil
and
rock and
hazardous
sump sludge.
The non-hazardous contaminated
soil
and rock was
generated during
construction activities on Respondent’s
property.
The hazardous sump
sludge
resulted from the clean out of a sump
on
Respondent’s property.
6.
Respondent had
a special waste approval from
Milam Recycling and
Disposal
Facility (“Milam RDF”) for the receipt of contaminated
soil
and
rock as non-hazardous waste..
On the special waste
approval, Respondent was to send
a one-time disposal
of 60
cubic yards
of contaminated
soil
and
rock to
Milam RDF between October 6,
2003 and October 4,
2004.
7.
Milam RDF is a solid waste permitted
landfill located
in St. Clair County,
Illinois
and
is
not permitted to
accept hazardous waste.
8.
On
September 16,
2003,
Respondent took samples of the contents of a 20 cubic
yard
roll-off container containing the sump sludge,
and sent the samples to Teklab of
Collinsville,
Illinois.
On
September 19,
2003,
Respondent received the lab results, which
showed
that the sump
sludge had a Toxicity Characteristic Leaching
Procedure
Tricloroethylene (TCLP TOE) content of 59.6
mg/I.
9.
On
October 16,
2003,
three
20
cubic yard
roll-off containers were staged
for
removal from the Respondent’s
property in
Hazelwood.
Two of the containers
contained
soil
2
and
rock to
be hauled
by
Midwest Sanitary Service to
Milam RDF.
The third
roll-off container
contained the TCLP TCE contaminated
sump sludge.
The roll-off boxes did
not have placards
on them.
S
10.
The roll-off container that contained the TCLP TOE contaminated
sump sludge
was
numbered #SD15213.
11.
Midwest Sanitary Service was
scheduled to arrive and
haul
away
two
20 cubic
yard
roll-off containers
containing the contaminated
soil and
rock to
Milam ROF
on October 16,
2003.
Midwest
Sanitary Service arrived
on
October 17, 2003 and removed
one
roll-off
container of non-hazardous contaminated
soil
and
rock and
one
roll-off box of the TCLP TOE
contaminated sump
sludge.
12.
On October
17, 2003,
both roll-off containers
were dumped
at Milam RDF.
13.
Respondentshipped the roll-off container that contained the TCLP TOE
to Milam
RDF on
manifest number IL10749954.
Respondent did
not indicate on the manifest that the
material was a
hazardous waste.
Respondent did
not placard
the roll-off container for
transporting hazardous waste.
14.
On October 20,
2003,
Respondent notified
Milam RDF that the contents of one
of the roll-off containers may have been
hazardous for TOE.
15.
On October 23, 2003,
Illinois
EPA received
a letter from Waste
Management
Company stating
that sump sludge from Respondent was disposed of at Milam
RDF that had
a
TCLP TOE content of 59.6
mg/I.
The sump sludge was
in a 20
cubic yard roll-off container and
hauled
to and disposed
of by
Midwest Sanitary Services
at
Milam RDF on October
17,
2003.
16.
On
November 10,
2003,
Illinois EPA conducted
a Non-financial Record
Review
Inspection of files for Milam RDF, Midwest Sanitary Services and
Respondent in
response to
the letter received on
October 23,
2003.
Illinois
EPA determined
that a 20 cubic yard
container
3
of hazardous waste was disposed
of at the’landfill
pursuant to a manifest that stated the
container contained
a special
non-hazardous waste consisting of contaminated
soil and
rock.
17.
Waste containing TCE
in
excess of 0.5 mg/I
pursuant to TCLP is a characteristic
hazardous waste due to
its toxicity pursuant to
Section
721.124(b) of the Board’s Hazardous
Waste
Regulations, 35
III.
Adm.
Code 721.124(b),
and
is designated
as a
D040
Hazardous
Waste.
18.
Section 21
of the Act, 415
ILOS 5/21
(2002), provides,
in
pertinent part,
as
follows:
No person shall:
(e)
Dispose, treat,
store or abandon any waste, or transport any waste
into
this State for disposal, treatment,
storage or abandonment, except at a
site or facility which meets the requirements
of this Act and
of regulations
and
standards thereunder.
***
19.
-
Section
3.535
of the Act, 415
ILOS 5/3.535
(2004),
provides as follows:
“Waste” means any garbage.
.
.
or other discarded
material,
including
solid,
liquid,
semi-solid, or contained
gaseous material resulting
from industrial,
commercial, mining and
agricultural operations,
and from
community activities,
20.
Section 3.220
of the Act, 415 ILOS
5/3.220
(2004), provides
as follows:
“Hazardous waste”
means a waste, or combination of wastes, which because
of
its quantity,
concentration, or physical,
chemical
,
or infectious characteristics
may cause or significantly contribute to an
increase in
mortality or an increase
in
serious,
irreversible,
or incapacitating
reversible,
illness; or
pose a substantial
present or potential
hazard to
human health or the environment when
improperly
treated, stored, transported,
or disposed
of, or otherwise managed,
and which
has
been identified,
by characteristics or listing,
as
hazardous pursuant to
Section
3001
of the Resource Conservation
and
Recovery Act
of 1976,
P.L.
94-
580, or pursuant to
Board
regulations.
***
21.
Section 3.185 of the Act, 415 ILCS
5/3.185 (2004),
provides
as follows:
4
“Disposal” means the discharge, deposit,
injection,
dumping,
spilling,
leaking
or
placing
of any waste or hazardous
waste into or on any land or water or into
any
well
so that such waste or hazardous waste or any
constituent thereof may enter
the environment or be emitted
into the air or discharged into any waters,
including
ground waters.
22.
Sections 722.120(a)
and
(b) of the Board’s Hazardous Waste
Regulations,
35
III.
Adm. Code 722.120(a),
(b),
provides as follows:
a)
A generator who transports, or offers for transportation, hazardous waste
for off-site
treatment, storage or disposal must
prepare a manifest before
transporting
the waste off-site.
b)
A generator must designate on the manifest one facility which is
permitted
to
handle the waste described
on the manifest.
***
23.
Section
722.133 of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code
722.133, provides as follows:
Before
transporting
hazardous waste or offering
hazardous waste
for
transportation off-site,
a generator
must placard or offer the
initial
transporter the
appropriate placards according
to
Department of Transportation
regulations for
hazardous
materials under 49
CFR Part
172,
Subpart
F.
24.
Section
728.107(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.107(a),
provides,
in
pertinent part, as follows:
a)
Requirements for generators
1)
A generator of a
hazardous waste
must determine
if the waste
has
to
be treated
before
it
can be
land disposed.
This is done by
determining
if the hazardous waste meets the treatment
standards in
Section 728.140, 728.145,
or 728.149.
This
determination can
be made
in
either of two ways:
testing
the
waste
or using knowledge
of the waste.
If the generator tests the
waste, testing determines the total concentration
of hazardous
constituents
or the concentration
of hazardous constituents in an
extract of the waste
obtained using SW-846 Method
1311
(the
Toxicity Characteristic Leaching
Procedure), incorporated
by
reference in
35
III. Adm.
Code 720.111, depending
on whether the
treatment standard for the waste
is expressed
as a total
5
concentration or concentration of hazardous
constituent in
the
waste extract....
2)
If the waste or contaminated-soil
does
not meet the treatment
standard, the generator must send
a one-timewritten
notice to
each treatment or storage facility receiving the waste with the
initial shipment of waste to
each treatment or storage facility,
and
the generator must place
a copy of the one-time notice
in the file.
The notice must include the information in column “728.107(a)(2)”
of the Generator Paperwork Requirements Table
in Table
I of this
Part.
No further nQtification
is necessary until such time that the
waste or facility changes,
in which case
a new notification must be
sent
and a copy placed
in the generator’s file.
***
25.
Section
728.109(a) of the Board’s Hazardous Waste
Regulations,
35
Ill.
Adm.
Code 728.109(a),
provides as follows:
a)
The initial generator of a solid waste
must determine each USEPA
hazardous
waste number (waste code)
applicable to
the waste
in order
to
determine the applicable
treatment standards under Subpart
D of this
Part.
*
*
*
If the generator determines that
its waste~displays
a
characteristic of hazardous waste
*
*
*
the generator
must determine the
underlying
hazardous
constituents (as defined
at
Section
728.102(i)) in
the characteristic waste.
***
26.
Section 728.138(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill.
Adm.
Code 728.138(a), provides
as follows:
a)
*
*
*
The following wastes
that are specified
in the table
at 35
Ill.
Adm.
Code 721 .124(b)
as USEPA hazardous waste
numbers DOl 2,
0013,
D014,
0015,
D016,
D017,
0018,
0019,
0020,
D021,
0022,
0023,
0024,
0025,
0026,
D027,
0028,
0029,
0030,
D031,
D032,
0033,
0034,
0035,
0036,
0037,
D038,
D039,
D040,
D041,
0042,
and
0043 that are not
radioactive, that are managed
in
systems other than those whose
discharge
is regulated
under the federal Clean
Water Act (CWA;
33
U.S.C.
1251
et seq.),
that are zero dischargers
that do
not engage
in
CWA-equivalent treatment before
ultimate land
disposal,
or that are
injected
in
Class
I
deep wells
regulated under the Safe Drinking Water
Act (SDWA) are prohibited from land disposal.
6
27.
Section
728.140 of the Board’s Hazardous Waste
Regulations,
35 Ill. Adm.
Code
728.140, provides,
in pertinent part, as follows:
a.
A prohibited waste
identified in
Table T of this Part,
“Treatment
Standards for Hazardous Wastes,” may be land disposed
only if
it meets
the requirements
found
in that Table.
For each waste, Table T of this
Part identifies
one of three types of treatment standard requirements:
1)
All
hazardous constituents
in the waste or in
the treatment residue
must be
at or below the values found
in Table T of this
Part for
that waste
(total waste
standards);
***
28.
Section
728.Table T of the Board’s Hazardous Waste
Regulations,
35
III.
Adm.
Code 728.Table T, provides,
in
pertinent part,
as follows:
Regulated Hazardous Constituent
Wastewaters
S
Nonwastewaters
Common Name
CAS Number
Concentration
in
mg/I...
Concentration in
mg/kg...
***
D040
Wastes that are TC for Trichloroethylene based
on the toxicity characteristic leaching
procedure
(TCLP)
in SW-846
Method 1311.
Trichloroethylene
79-01-6
0.054 and meet Section
6.0 and meet Section
728.148 standards
728.148 standards
***
29.
Respondent disposed
of a waste
at the Milam RDF landfill
a solid waste landfill,
which does not meet the requirements of the Act and
Board
Regulations as
a
hazardous waste
landfill.
30.
By disposing of a waste at
a facility that does not meet the requirements of the
Act or the Board
Regulations,
Respondent violated
Section
21(e) of the Act,
415
ILOS 5/21(e)
(2002).
7
31.
Respondent did
not prepare a
Uniform
Hazardous Waste
manifest for the 20
cubic yard
roll off container of TOE contaminated
sump sludge (D040),
nor designate
on the
waste manifest a facility that was
permitted
to
handle the waste.
32.
By not preparing
a
Uniform
Hazardous Waste
manifest for the contaminated
sump sludge, Respondent violated Section
722.120(a) of the Board’s Hazardous Waste
Regulations,
35
III. Adm.
Code 722.120(b).
33.
By not designating
a facility that was
permitted to
handle the waste on the waste
manifest,
Respondent violated
Section 722.120(b)
of the Board’s Hazardous Waste
Regulations,
35
III. Adm.
Code 722.120(b).
34.
By not placarding the roll-off container for hazardous
materials,
Respondent
violated
Section 722.133
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code
722.133.
35.
Respondent did
not send
a written
notice to
Milam RDF for the shipment of TOE
contaminated sump
sludge (D040) that the shipment did
not meet the treatment standard,
in
violation
of Section 728.107(a)(2) of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.107(a)(2).
36.
Respondent did
not determine if the TOE contaminated
sump sludge
needed to
be treated
prior to
landfill disposal,
in violation
of Section 728.107(a)(1) of the Board’s
Hazardous Waste
Regulations,
35
III. Adm.
Code 728.107(a)(1).
37.
Respondent did
not determine the USEPA hazardous waste
number applicable
to the TOE contaminated
sump sludge
prior to
shipping the sump
sludge to
Milam
RDF, in
violation
of Section
728.109(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code
728.109(a).
8
38.
Respondent disposed
of the TOE contaminated
sump sludge,
a USEPA
hazardous waste number D040,
in a
landfill
in violation of Section
728.138(a) of the .Board’s
Hazardous Waste
Regulations,
35
III.
Adm.
Code 728.138(a).
39.
Respondent disposed
of TOE contaminated sump sludge,
a USEPA hazardous
waste
number D040,
in a
landfill without treating the sludge so that it met or was below the
standards
in Table T of Section
728,
in violation of Section
728.140 of the Board’s Hazardous
Waste
Regulations, 35
Ill.
Adm. Code 728.140.
PRAYER
FOR RELIEF
WHEREFORE, the Complainant,
People of the State of
Illinois, respectfully requests
that this Court grant the following
relief:
A.
Find that the Respondent,
GKN AEROSPACE NORTH AMERIOA,
INC., has
violated Section
21(e) of the Act, 415
ILOS
5/21(e) (2002) and
Sections 722.120, 722.133,
728.107, 728.109, 728.138 and
728.140,
35
III.
Adm.
Code 722.120,
722.133, 728.107,
728.109,
728.138, 728.140,
and thereby created
circumstances of substantial
danger to
the
environment or to the public health;
B.
Permanently enjoin
the Respondent,
GKN AEROSPACE NORTH AMERICA,
INC., from further violations of the Act and
associated
regulations pursuant to Section
42(e) of
the Act, 415
ILOS
5/42(e) (2002);
C.
Pursuant to Section
42(a) of the Act, 415 ILOS 5/42(a)
(2002),
impose
upon the
Respondent,
GKN AEROSPACE NORTH AMERICA,
INO.,
a monetary penalty of not more
than the statutory
maximum;
0.
Pursuant to Section 42(f) of the Act, 415
ILOS 5/42(f)
(2002),
award the
Complainant
its
costs
in this matter,
including reasonable attorney’s fees and
costs;
and
9
E.
Grant such
other and further relief as the Court deems appropriate..
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS,
exrel.
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:_______________________
THOMAS
DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
ASSIGNED ATTORNEY
Kristen Laughridge
Assistant Attorney General
500
South
Second Street
Springfield,
Illinois 62706
217/524-7506
Dated:
July 5,
2005
10
BEFORE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MP~DIGAN, Attorney
General of
the State of Illinois,
)
Complainant,
v.
)
No.
05-PCB
-
(Enforcement
-
Land)
GKN AEROSPACE NORTH AMERICA,
)
INC.,
a Delaware
corporation,
Respondent.
STIPULATION
AND PROPOSAL
FOR SETTLEMENT
TABLE OF CONTENTS
I.
JURISDICTION
2
ii.
AUTHORIZATION
2
III.
STATEMENT OF FACTS
2
A.
Parties
.
2
B.
Site Description
3
C.
Allegations
of Non-Compliance
4
n.
Non-Admission
of Violations
5
E.
Compliance Activities
to Date
5
iv.
APPLICABILITY
6
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
7
vi.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
7
vii.
CONSIDERATION
OF SECTION 42(h)
FACTORS
8
viii.
TERMS
OF SETTLEMENT
.
11
A.
Penalty Payment
11
B.
Future Use
.
13
C.
Cease
and Desist
13
D.
Release
from Liability
14
E.
Enforcement
of Board Order
15
BEFORE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois,
Complainant,
v.
)
No.
05-PCB-
(Enforcement
-
Land)
GKN AEROSPACE NORTH AMERICA,
)
INC.,
a Delaware corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMEI~T
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA
MZ~JJIGAN,
Attorney General
of the State of Illinois,
the Illinois
Environmental Protection Agency (“Illinois EPA”), and Respondent,
GK~AEROSPACE NORTH ANERICA,
INC.
(“GKN Aerospace”), have agreed
to the making of this 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 of
the evidence and testimony which would be introduced by the
parties
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 the fact that a party has
entered into this Stipulation,
nor any of the facts stipulated
herein,
shall be introduced into evidence in any other proceeding
regarding the claims asserted in the Complaint except as
otherwise provided herein.
If this Board approves and enters
this Stipulation,
Respondent agrees to be bound by the
Stipulation and Board Order and not to contest
its validity in
any subsequent proceeding to implement or enforce
its terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and
of the parties consenting hereto pursuant to the Illinois
Environmental Protection Act
(“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 to
legally bind them to it.
III. STATEMENT OF FACTS
A.
Parties
1.
On the same date of entry of this Stipulation,
a
Complaint was filed with the Board on behalf of the People of the
2
State of Illinois by Lisa Madigan, Attorney General of the State
of Illinois,
on her own motion and upon the request of the
Illinois EPA, pursuant to Section 31 of the Act,
415 ILCS
5/31(2002),
against the Respondent.
2.
The Illinois EPA is an administrative agency of the
State of Illinois,
created pursuant to Section
4 of the Act,
415
ILCS 5/4.
3.
At all times relevant to the Complaint, Respondent
GKN
Aerospace was and
is a Delaware corporation.
B.
Site Description and History
1.
At all times relevant to the Complaint, Respondent
owned and operated
GK~
Aerospace Services-St. Louis,
an aerospace
facility located in St. Louis County, Missouri
(the
“Facility”)
2.
On October
17,
2003,
one 20 cubic-yard roll-off
container of non-hazardous contaminated soil and rock,
and one 20
cubic-yard roll-off container of sump sludge contaminated with
trichloroethylene
(“TCE”)
were transported and disposed at Milam
Recycling and Disposal Facility (“Milam RDF”)
3..
Respondent shipped the 20 cubic-yard roll-off container
that contained the sump sludge to Milam
RDF
on manifest number IL
10749954. Respondent did not indicate on the manifest that the
3
material was a hazardous waste. Respondent did not placard the
roll-off container for transporting hazardous waste.
8.
On October 20,
2003,
Respondent notified Milam RDF that
the contents of one of the roll-off containers may have been a
hazardous waste.
9.
On October 23,
2003,
Illinois EPA received a
Notification from Waste Management Company stating that sump
sludge from Respondent was disposed of at Milam RDF that had a
TCE content of 59.6 mg/l as measured by the Toxicity
Characteristic Leaching Procedure
(“TCLP”).
10.
Waste containing TCE in excess of 0.5 mg/l pursuant to
the TCLP is a characteristic hazardous waste exhib-iting the
toxicity characteristic pursuant to Section 721.124(b)
of the
Board’s Hazardous Waste Regulations,
35
Ill. Adm.
Code
721.124(b),
and is designated
as a D040 Hazardous Waste.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board Regulations:
Count
I:
Section 21(e)
of the Act,
415 ILCS 5/21(e) (2002)
Section 722.120(a)
&
(b)
of the Board’s Hazardous
Waste Regulations,
35
Ill. Adm.
Code 722.120
(a)
&
(b).
4
Section .722.133 of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 722.133.
Section 728.107(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.107 (a) (2).
Section 728.109(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.109(a)
Section 728.138(a)
of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.138(a)
Section 728.140 of the Board’s Hazardous Waste
Regulations,
35
Ill. Adm.
Code 728.140.
Section 728.Table T of the Board’s Hazardous Waster
Regulations,
35
Ill. Adm.
Code 728.Table
T.
D.
Non-Admission of Violations
The Respondent represents that it has entered into this
Stipulation for the purpose of settling and compromising disputed
claims without having to incur the expense of contested
litigation.
By entering into this Stipulation and complying with
its terms,
the Respondent does not affirmatively admit the
allegations
of violation within the Complaint and referenced
within Section III.C.
herein, and this Stipulation shall not be
interpreted as including such admission.
E.
Compliance Activities
to Date
GKN
has implemented the following changes to its waste
handling procedures:
5
1.
No waste trucker is allowed to enter the plant property
without express contemporaneous authorization of the
Environmental Services Supervisor,
his designee or the GQ~
Environmental Engineer.
2.
The Environmental Services Supervisor,
or his designee,
will direct the truck and assure that the correct material
is
delivered or removed.
3.
Where any kind of waste manifest
is required,
the
serial number of the container to be removed will be clearly
noted on the manifest before
it
is delivered to the truck driver
at the facility.
4.
If any non-routine waste
is generated,
it will only be
held in the non-hazardous waste area
if
GKL”T
knows that
it
is not
hazardous.
Any other non-routinely generated waste will be
handled in the hazardous waste area unless and until
GKN
knows
that
it is not hazardous.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent,
and any officer, director,
agent,
or employee of the Respondent, as well as any successors or
assigns of the Respondent.
The Respondent
shall not raise
as a
6
defense to •any enforcement action taken pursuant to this
Stipulation the failure of any of its officers,
directors,
agents,
employees or successors or assigns
to take •such action as
shall be required to comply with the provisions of this
Stipulation.
V. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of
the 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)
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
7
-
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.
In response to these factors, Complainant states the
following:
1.
Human health and the environment were threatened by the
Respondent
s violations.
2.
There are social and economic benefits
as to an
aerospace facility and its production,
a consequence of which is
its waste.
3.
The aerospace facility is suitable for the area in
which
it
is located.
4.
Complying with the Act and Illinois EPA standards for
hazardous waste disposal are both technically practicable and
economically reasonable.
5.
The Respondent has subsequently been in compliance.
VII.
CONSIDERATION OF SECTION 42(h)
FACTORS
Section 42(h)
of the Act,
415 ILCS 5/42(h) (2002),
provides
8
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 respondent
in attempting to comply
with requirements of this Act and regulations
thereunder or to secure relief therefrom as
provided by this Act;
3.
any economic benefits accrued by the respondent
because of delay in compliance with requirements,
in which case the economic benefits shall be
determined by the lowest cost alternative for
achieving compliance;
4.
the amount of monetary penalty which will serve to
deter further violations by the respondent and to
otherwise aid in enhancing voluntary compliance
with this Act by the respondent and other persons
similarly subject to the Act;
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.
9
In response to these factors, Complainant states as follows:
1.
Respondent improperly disposed of hazardous waste one
time at a non-hazardous waste landfill,
thereby not complying
with the Act and Illinois EPA standards.
The violations are of a
serious nature,
for disposing of hazardous waste at a non-
hazardous waste landfill poses a risk to public health and the
environment.
2.
After recognition of the improper disposal,
Respondent
has implemented new practices for the disposal of non-hazardous
and hazardous waste.
3.
An economic benefit was accrued because it costs
approximately $5,000 more to dispose of the hazar~us waste
properly as opposed to disposal
at the non-hazardous waste
landfill.
4.
Complainant has determined,based upon the specific
facts of this matter that a penalty of twenty-two thousand
dollars
($22,000)
will serve to deter further violations,
aid in
future voluntary compliance with the Act and Board regulations,
and recover any benefits from the violation.
5.
Respondent has no prior adjudicated violations of the
S
Act and Board regulations.
6.
Self-disclosure
is not at issue in
th.is matter.
10
7.
The settlement of this matter does not include
.a
supplemental environmental project.
VIII.
TERMS OF SETTLEMENT
.
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty of Twenty-Two
Thousand Dollars
($22,000) within thirty
(30)
days of
Respondent’s receipt of notice of entry of the Stipulation.
The
penalty described in this Stipulation shall be paid by certified
check, money order or electronic funds transfer payable to the
Illinois EPA,
designated to the Illinois Environmental Protection
Trust Fund and submitted to:
.
-
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O.
Box. 19276
.
Springfield,
IL 62794-9276
The name,
case number and the Respondent’s Federal Employer
Identification Number
(“FEIN”)
,
36-4399771,
shall appear on the
face of the certified check or money order.
A copy of the
certified check, money order or record of electronic
funds
transfer and any transmittal letter shall be sent to:
Kristen Laughridge
Assistant Attorney General
-
Environmental Bureau
500 South Second Street
11
Springfield,
Illinois 62706
-
Melanie Jarvis
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
2.
Pursuant to Section 42(g)
of the Act,
415
ILCS 5/42(g)
(2002),
interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate allowable under
Section 1003(a)
of the Illinois Income Tax Act,
35 ILCS 5/lO03
(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 EPA,
designated to the Illinois
Environmental Protection Trust Fund and delivered to the address
and in the manner described above.
3.
For purposes of payment and collection, Respondent may
be reached at the following address:
GKN
Aerospace
-
St. Louis, Mail Code S070
142 JS McDonnell Blvd.
St.
Louis, Missouri 63042
12
4.
In the event
of default of this Sectior~.VIII.A,
the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney’s
fees.
B.
Future Use
Notwithstanding any other language in this Stipulation to
the contrary,
and in consideration of the mutual promises and
conditions contained in this Stipulation,
including the Release
from Liability contained in Section VIII.E.,
below, Respondent
hereby agrees that this Stipulation may be used against the
Respondent
in any subsequent enforcement action or permit
proceeding as proof of a past adjudication of violation of the
Act and the Board Regulations promulgated thereunder for all
violations alleged in the Complaint in this matter,
for purposes
of Section 39(a)
and
(i) and/or 42(h)
of the Act,
415 ILCS
5/39(a) and
(i) and/or 5/42(h).
Further, Respondent agrees to
waive,
in any subsequent enforcement action,
any right
to contest
whether these alleged violations were adjudicated.
C.
Cease and Desist
The Respondent
shall cease and desist from future violations
13
o-f the Act and Board Regulations that were the subject matter of
the Complaint
as outlined in Section III.C.
(“Allegations of Non-
Compliance”)
of this Stipulation.
D.
Release from Liability
In consideration of the. Respondent’s payment of a $22,000
penalty and any specified costs and accrued interest,
completion
of all activities required hereunder,
and to Cease and Desist as
contained in Section VIII.D.
above,
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 Complainant’s Complaint filed on the same
date as entry of this Stipulation.
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
14
the alleged ~iiolations; and
d.
liability or claims based on the Respondentfls 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,
or entity other than the
Respondent.
E.
Enforcement of Board Order
-
-
1.
Upon the entry of the Board’s Order approving and
accepting this Stipulation and Proposal
for Settlement,
the Order
is a binding and enforceable order of the Illinois Pollution
Control Board and may be enforced as such through any and all
available means.
2.
Respondent agrees that notice of any 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 of service of process.
3.
The parties agree
that,
if the Board does not approve
15
and accept this Stipulation and Proposal for Settlement, then
neither party
is bound by the terms herein.
4.
It
is the intent of the Complainant and Respondent that
the provisions of this 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
of
competent jurisdiction to be inconsistent with state or federal
law, and therefore unenforceable,
the remaining clauses shall
remain in full
force. and effect.
WHEREFORE,
Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal for
Settlement as written.
16
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW
J.
DUNN,
Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
DATE:
_____________
THOMAS DAVIS, Chief
Environmental Bureau
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY:
~
J~~~TE:
~Y
~
WILLIAM INGERSOLL
Acting Chief Legal Counsel
GKN
AEROSPACE NORTH AMERICA,
INC.,
a Delaware corporation
BY:
________________
DATE:
~UN~2.Z2-~0S
MICHAEL A. BECK
Chief Operating Officer &
Site Executive
17
