f~~\flfliThflRfl

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RECEIVED

BEFORE

THE

ULffl~

(P~flJV~M9tNTROL

BOARD

CLERK’S OFfl~p

~YJIR\iR~5lIIII\’I/1II

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32003

PEOPLE

OF

THE

STATE

OF

ILLui~Js~u\.)uquu

UL:i

S1A1 E OF

ILLINOIS

Polluti0~

Control Board

vs.

No.

PCB 03-153

(Enforcement

-

Water)

C

&

F PACKING CO.,

INC.,

an Illinois corporation,

Respondent.

TO:

Mr.

Scott Richmond

Bradley Halloran

Attorney

for Respondent

Hearing Officer

474 Summit Street

100 West Randolph Street

Elgin,

IL.

60120

11th

Floor

Chicago,

IL.

60601

NOTICE OF FILING

PLEASE TAKE NOTICE that we have today,

May

13,

2003,

filed with

the Office

of the Clerk of the Illinois Pollution Control Board an

original and nine copies of

a Stipulation and Proposal

for Settlement

and

a Motion to Request Relief from Hearing Requirement,

copies of

which are attached herewith and served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the

State of

Illinois

BY:

~1~L

~

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188

W.

Randolph St.,

20th

Flr.

Chicago,

IL 60601

(312)

814-1511

THIS FILING

IS SUBMITTED ON RECYCLED PAPER

---

RECEIVED

BEFORE

~\

~

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CONTROL

BOARD

CLERK’S

OFFrpp

PEOPLE

OF

THE

STATE

o~(

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MAY

132003

Complainant\~/J\\J\~)j\J

Lb

STATE

OF

ILLINOIS

o

utton

Control Board

vs.

No.

PCB 03-153

(Enforcement

-

Water)

C

&

F PACKING CO.,

INC.,

an Illinois corporation,

Respondent.

MOTION TO REQUEST RELIEF

FROM HEARING REOUIREMENT

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 March

18,

2003,

a Complaint was

filed with the Pollution

Control Board

(“Board”)

in this matter.

On May

13,

2003,

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 June

26,

2002,

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 MADIGAM,

Attorney General of the State of Illinois,

requests

relief from the requirement

of

a hearing pursuant to 415

ILCS

5/31(c) (2),

effective June

26,

2002.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General of the

State of

Illinois

By:

j’~&L~~

£

ie~

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188

W.

Randolph St.,

20th

Fl.

Chicago,

Illinois

60601

(312)

814-1511

2

---

flfl\r.

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~(

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th’

a

BEFORE

THE

4Laftv~4çt~

fr~1

ONTROL

BOAR~fty

132003

PEOPLE

OF

THE

STATE

OF

rtLn~OIs;’

STAlE

OF !LLINOIS

Pollution

Control Board

Complainant,

-vs-

)

No.

PCB

03-153

(Enforcement-Water)

C

&

F PACKING

CO.,

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 of

Illinois,

at the

request of the Illinois Environmental Protection Agency,

and

Respondent,

C

&

F PACKING CO.,

INC.,

an Illinois 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

(“Board”)

order accepting same may be used in any future

-1-

---

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

Respondent,

and

each

of

them,

and

on

any

officer,

director,

agent,

employee

or

servant

of

Respondent,

as

well

as

Respondent’s

successors

and

assigns.

Respondent

shall

not

raise

as

a

defense

to

any

enforcement

action

taken

pursuant

to

this

settlement

the

failure

of

its

officers,

directors,

agents,

servants

or

employees

to

take

such

action

as

shall

be

required

to

comply

with

the

provisions

of

this

-2-

---

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,

C

& F PACKING CO.,

INC.

(“C

&

F

PACKING”),

is an Illinois corporation,

duly authorized to transact business

in Illinois.

B.

Facility

Description

At all times relevant to the Complaint,

C

&

F PACKING leased

a parcel of property within the business park commonly known as

Park Place Business Center on Route 83

in Lake Villa,

Lake

County,

Illinois

(“Site”)

.

At the Site,

Respondent was

constructing a production facility/warehouse to be used in the

manufacture of fresh and pre-cooked meat products.

The Site is

over

five

acres

in

size.

C.

Noncompliance

Complainant

has

alleged

the

following

violations

of

the

Act

-3—

---

and Illinois Pollution Control Board

(“Board”)

regulations

against the Respondent:

COUNT

I:

WATER POLLUTION, violations of 415

ILCS 5/12(a)

(2002)and 35

Ill. Adm.

Code 302.203;

COUNT

II:

CREATING A WATER POLLUTION HAZARD,

violation of 415

ILCS 5/12(d) (2002)

COUNT III: FAILING TO OBTAIN A NPDES PERMIT,

violations of 415

ILCS 5/12(f) (2002)and 35

Iii.

Adm.

Code 309.102(a);

COUNT

IV:

FAILING TO OBTAIN A CONSTRUCTION PERMIT,

violations

of

415 ILCS 5/12(b) (2002)and

35 Ill. Adm.

Code

309.202(a).

D.

Response to allegations

Respondent neither admits nor denies the alleged violations.

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-

---

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 alleged violations

of the

Act was the threat

of and actual water pollution in to Illinois

wetland areas and waterways.

Permits are the only way the State

can monitor and control the discharge of contaminants

to waters

of the State and treatment works.

2.

Social and Economic Benefit:

The parties agree that operation of Respondent’s business

is

of social and economic benefit, provided it operates in

conformance with the requirements of the Act and pertinent Board

water pollution regulations.

3.

Suitability

to the Area:

Operation of Respondent’s business at the Site is suitable

to the area, provided that all necessary permits are obtained in

a timely fashion and adequate storm water runoff measures are

in

place and maintained while construction activities are ongoing.

4.

Technical Practicability:

Obtaining all necessary permits prior to initiating

construction and employing and maintaining adequate storm water

-5-

---

runoff controls at its worksite are both technically practicable

and economically reasonable.

5.

Subsequent

Compliance:

Respondent

is currently operating within the boundaries and

the conditions specified in its permits.

VI.

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

the violator

ANALYSIS:

1.

Duration and Gravity of the Violation:

-6-

---

The violations that are the subject of the Complaint lasted

approximately three months, and resulted in noticeable turbidity in

the runoff from the Site.

2.

Diligence of Respondent:

The Respondent has completed construction,

removed all dirt

stockpiles

from

the

Site,

and

obtained

all

relevant

permits,

as

described

in the Complaint,

and is now operating in compliance

with its permits.

3.

Economic Benefit of Noncompliance:

The Respondent received an economic benefit

from the alleged

noncompliance,

however the exact value of the economic benefit

is

difficult

to quantify.

4.

Deterrence:

A penalty of Eleven Thousand Dollars

($11,000.00)

against

the Respondent will deter future noncompliance by the Respondent

and others.

5.

Compliance History:

The

Respondent

has

no

previously

adjudicated

violations

of

the Act and Board Regulations.

VII.

TERMS

OF

SETTLEMENT

1.

The

Respondent

neither

admits

nor

denies

the

violations

as

alleged

in

the

Complaint.

2.

The

Respondent

shall

pay

a

penalty

of

Eleven

Thousand

Dollars

($11,000.00)

within

30 days of the date the Board issues

-7-

---

an

Order

accepting

this

Stipulation.

3.

All

Payments

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

Copies of the certified checks or money orders,

and all

related correspondence,

shall be sent by first class mail to:

Paula Becker Wheeler

Assistant Attorney General

Environmental Bureau

188

West

Randolph,

20th

Fir.

Chicago,

Illinois 60601

4.

Respondent’s

Federal

Employers

Identification

Number

(“FEIN”) must be on the certified check or money order.

For

issues relating to the payment of the penalty,

the Respondent may

be

reached

at

the

following

address:

515 Park Avenue

Lake Villa,

Illinois 60046

For purposes of payment and collection,

the Respondent’s

attorney may be reached at the following address:

Mr.

Scott Richmond

Attorney

at

Law

474 Summit Street

Elgin,

Illinois

60120

5.

Pursuant to Section 42(g)

of the Act,

415

ILCS 5/42(g)

-8-

---

(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)

6.

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.

7.

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.

8.

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

certified check or money order and the transmittal letter shall

be

sent

to:

Paula Becker Wheeler

Assistant Attorney General

(or other designee)

Environmental Bureau

188 W.

Randolph St.,

20th

Floor

Chicago,

Illinois 60601

9.

In

the

event

of

default,

the

Complainant

shall

be

entitled to reasonable costs of collection,

including reasonable

attorney’s fees.

-9-

---

VIII.

CEASE AND DESIST

Respondent

shall cease and desist from future violations

of

the Act and Board regulations,

including but not limited to,

those sections of the Act and Board regulations that were the

subject matter of the complaint as outlined in Section IV.C.

of

this Stipulation and Proposal for Settlement.

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.

RIGHT OF ENTRY

In addition to any other authority,

the Illinois EPA,

its

employees and representatives,

and the Attorney General, her

agents and representatives,

shall have the right of entry into

and upon the Respondent’s facility which is the subject

of this

Consent Order,

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.

-10-

---

XI.

RELEASE FROM LIABILITY

In consideration of Respondent’s payment of Eleven Thousand

Dollars

($11,000.00), and Respondent’s commitment to refrain from

future violations

of the Act and Board regulations,

Complainant

releases,

waives and discharges

the Respondent from any further

liability or penalties for violations

of the Act and regulations

which were the subject matter of the 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

undiscovered violations,

or obtain penalties with respect

thereto.

WHEREFORE,

Complainant and Respondent request that the Board

adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

-11-

---

AGREED:

FOR THE COMPLAINANT:

LISA MADIGAN

Attorney General

BY:

State of

Illinois

Matthew J.

Dunn,

Chief

Environmental Enforcement/

Asbestos Litigation Division

FOR RESPONDENT:

C

& F PACKING CO.,INC.

9z’yivtrs

~.

/jJ4eo/

Title:

~pt’rc4wo

JTteec,zcccr

FEIN:

Dated:

c/’

-

2’M6

4/

74~

i-f-

03

ROSEMARIE CAZEAU,

Chief

Environmental Bureau

Assistant Attorney General

Dated:

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY

By:

JOSEPH

E. SVOBODA

Chief Legal Counsel

Dated:

By:

-12-

---

AGREED:

FOR

THE

COMPLAINANT:

LISA

MADIGAN

Attorney

General

State of Illinois

Matthew J.

Dunn,

Chief

Environmental Enforcement/

Asbestos Litigation Division

Environmenta

ureau

Assistant

Attorney

General

Dated:

_______

FOR

RESPONDENT:

C

&

F

PACKING

CO.,INC.

BY:

Title:

FEIN:

Dated:

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENC

‘E.

SVOBODA

.ief

Legal

Counsel

Dated:

By:

1,’

-12-

---

CERTIFICATE OF SERVICE

I,

PAULA BECKER WHEELER,

an attorney,

do certify that I

caused to be served this 13th day of May,

2003,

the foregoing

Stipulation and Proposal for Settlement and Motion

to Request

Relief from Hearing Requirement and Notice of Filing upon the

persons listed on said Notice,

by Certified Mail.

I

L /d/~~~

PAULA BECKER WHEELER