BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
'PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.
P
CB No. 05-192
(Enforcement -Air)
Bag Makers, Inc., an TIllinois
corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the Illinois Pollution Control Board by
electronic filing the following Stipulation and Proposal for
Settlement and Motion for Relief from Hearing Requirement,
copies of which are attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
-)C
f-%--~A
Assistant Attorney General
Environmental Bureau
188 W.
Randolph St.,
20t
Floor
Chicago, Illinois 60601
312-814-0609
DATE: November 16, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
Service List
Steven murawski, Esq.
Gardner Carton & Douglas
191
N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
Maureen Wozniak
Assistant Counsel, Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
Complainant,
V.)
PCB No. 05-192
(Enforcement
-
Air)
Bag Makers, Inc., an Illinois
corporation,
Respondent.
MOTION FOR RELIEF PROM 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) (2004), 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) of the Act, 415 TLCS
5/31(c) (1). (2004).
Tn support of this motion, Complainant
states as follows:
1.
The Complaint in this matter alleges violation of the
Sections 9(a), 9(b) and 39.5(6) (b) of the Act, 415 TLCS 5/9(a),
9(b) and 39.5(6) (b) (2004) and Sections 201.142, 201.143,
203.201, 201.302(a), 254.137(a), 254.132(a) and 218.404(b) of
the Board regulations, 35 Ill. Adm. Code 201.142, 201.143,
203.201, 201.302(a), 254.137(a), 254.132(a) and 218.404(b).
2.
Complainant is filing this Motion and a Stipulation
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
and Proposal for Settlement with the Board.
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 respectfully
request relief from such a hearing as allowed by Section
31(c) (2) of the Act, 415 TLCS 5/31(c) (2) (2004).
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) of the
Act, 415 ILCS 5/31(c) (1) (2004).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois
60601
(312) 814-0609
DATE: November 16, 2005.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.)
PCE No. 05-192
(Enforcement
-
Air)
Bag Makers, Inc., an Illinois
corporation,
Respondent.
STIPULATION
ANDl
PROPOSAL
FOR
SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, the Illinois
Environmental Protection Agency ("Illinois EPA"), and BAG MAKERS,
INC., ("Respondent"), 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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
claims asserted in the Complaint except as otherwise provided
herein.
If the 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.
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 TLCS 5/1 et
seq.
(2004).
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 April 29, 2005, a Complaint was filed on behalf of
the People of the State of Illinois by Lisa Madigan, Attorney
General of the State of Illinois, on her own motion and upon the
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
request of the Illinois EPA, pursuant to Section 31 of the Act,
415 ILCS 5/31(2004), 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 (2004).
3.
At all times relevant to the Complaint, Respondent was
and is an Illinois corporation that is authorized to transact
business in the State of Illinois.
B.
Site Description
1.
At all times relevant to the Complaint, Respondent
owned and operated a flexographic printing facility located at
6606 South Union Road, Union, McHenry County, Illinois ("site").
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count I:
CONSTRUCTING AIR EMISSION SOURCES WITHOUT A
PERMIT, in violatidn of Section 9(b) of the Act,
415 ILCS 5/9(b) (2004), and 35 Ill. Adm. Code
201.142.
Count II:
FAILURE TO OBTAIN OPERATING PERMITS FOR NEW
EMISSION SOURCES, in violation of Section 9(b) of
the Act, 415 ILCS 5/9(b) (2004), and 35 Ill.. Adm.
Code 201.143.
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Count III:
FAILURE TO OBTAIN A CLEAN AIR ACT PERMIT PROGRAM
(CAAPP) PERMIT, in violation of Section
39.5(6) (b) of the Act, 415 ILCS
5/39 .5(6) (b) (2004).
Count IV:
FAILURE TO COMPLY WITH NEW SOURCE REVIEW (NSR)
REQUIREMENTS, in violation of Section 9(a) of the
Act, 415 ILCS 5/9(a) (2004), and 35 Ill. Adm. Code
2 03 .2
01 .
Count V:
FAILURE TO SUBMIT TIMELY ANNUAL EMISSIONS
REPORTS, in violation of Section 9(a) of the Act,
415 ILCS 5/9(a) (2004), and 35 Ill. Adm. Code
201.302(a), 254.137(a) and 254.132(a).
Count VI:
VIOLATION OF FLEXOGRAPHIC PRINTING RULES: FAILURE
TO MAINTAIN RECORDS, in violation of Section 9(a)
of the Act, 415 ILCS 5/9(a) (2004)., and 35 Ill.
Adm. Code 218.404(b).
D.
Non-Admission of Violations
The Respondent neither admits nor denies the violations
alleged in the Complaint filed in this matter and referenced
herein.
E.
Compliance Activities to Date
1.
On July 1, 2003, Respondent submitted an application
for a Federally Enforceable State Operating Permit ("FESOP"1) from
the Illinois EPA.
2.
On May 10, 2005, the Illinois EPA issued Respondent a
FESOP for the site.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
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
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 reguired 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 TLCS 5/33 Cc) (2004)
,
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,
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
general welfare and physical property of the
people;
.2.
the social and economic value of the pollution
source;
3.
the suitability or unsuitability of the pollution
source to the area in which it is located,
including the question of priority of location in
the area involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
5.
any subsequent compliance.
In response to these factors, the Complainant contends the
following:
1.
Human health and the environment were threatened and
the Illinois EPA's information gathering responsibilities
hindered by the Respondent's violations.
2.
There is social and economic benefit to the facility.
3.
Operation of the facility was suitable for the area in
which it occurred.
4.
obtaining a permit prior to construction at the site,
obtaining operating permits for new emission sources at the site,
obtaining a Clean Air Act Permit Program ("1CAAPP")~
permit,
submitting timely reports, and properly maintaining records is
technically practicable and economically reasonable.
5.
Respondent has subsequently complied with the Act and
the Board Regulations.
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VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h) (2004)
,
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 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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
which the respondent is not otherwise legally
required to perform.
In response to these factors, the Complainant contends the
following:
1.
The Respondent operated emission units without the
required permits for a period of at least eight years.
Respondent constructed numerous emission units without
demonstrating compliance with the Board's NSR regulations. The
Respondent failed to keep records and make reports as required by
the Board's flexographic printing regulations. The permitting,
CAAFP, NSR, flexographic printing and recordkeeping and reporting
requirements are of programmatic significance to the Illinois
EPA.
2.
Respondent was diligent in responding to the Act's
Section 31 process.
3.
Respondent had an~ economic benefit of $700.00 in
avoided air pollution site fees.
The penalty obtained includes
this amount.
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of $62,700:00 will serve to
deter further violations and aid in future voluntary compliance
.with the Act and Board regulations.
5.
To Complainant's knowledge, Respondent has no
previously adjudicated violations of the Act.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a
supplemental environmental project.
Vill.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Sixty Two Thousand Seven Hundred Dollars ($62,700.00) within
thirty (30) days from the date the Board adopts and accepts this
Stipulation. The Respondent stipulates that payment has been
tendered to Respondent's attorney of record in this matter in a
form acceptable to that attorney. Further, Respondent stipulates
that said attorney has been directed to make the penalty payment
on behalf of Respondent, within thirty (30) days from the date
the Board adopts and accepts this Stipulation, in a manner
prescribed below. The penalty described in this Stipulation
shall be paid by two certified checks, money orders or electronic
funds transfers payable to the Illinois EPA; one, payment of
$62,000.00 designated to the Illinois Environmental Protection
Trust Fund and one payment of $70 0.00 designated to the Illinois
Environmental Permit and Inspection Fund. Both payments shall be
submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer
Identification Number (FEIN), shall appear on the checks. A copy
of the certified checks, money orders or records of electronic
funds transfer and any transmittal letters shall be sent to:
Jennifer A. Tomas
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2
0
th
Floor
Chicago, Illinois 60601
Maureen Wozniak
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)
(2004)
,
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 5/1003
(2004)
.
Interest on any unpaid payment shall begin to accrue
from the date the payment i½ 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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
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:
Charles D. Sanford
President
Bag Makers, Inc.
6606 South Union Road
Union, IL 60180
4.
In the event of default of this Section 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.
Compliance Plan
Respondent shall obtain appropriate construction and
operating permits from the Illinois EPA Bureau of Air for future
regulated equipment additions or changes.
.C.
Future Use
Notwithstanding any other language in thi½ 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, the Respondent
hereby agrees that this Stipulation may be used against the
Respondent in any subsequent enforcement action or permit
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
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 Ci) and/or 42(h) of the Act, 415 ILCS
5/39(a) and(i) and/or 5/42(h) (2004).
Further, Respondent agrees
to waive any rights to contest, in any subsequent enforcement
action or permit proceeding, any allegations that these alleged
violations were adjudicated.
D.
Cease and Desist
The Respondent shall cease and desist from future violations
of 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.
E.
Release from Liability
In consideration of the Respondent's payment of the
$62,700.00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder, to Cease and
Desist as contained in Section VIII.D and upon the Pollution
Control Board's acceptance and approval of the terms of this
Stipulation and Proposal for Settlement, the Complainant
releases, waives and discharges the Respondent and its officers,
directors, agents and employees from any further liability or
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
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 April 29,
2005.
The Complainant reserves, and this Stipulation is without
prejudice to, all rights of the State of Tllinois 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 TLCS 5/3.315, or entity other than the
Respondent.
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F.
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
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.
G.
Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents
required under this Stipulation, except for payments pursuant to
Sections VIII.A ("Penalty Payment") of this Stipulation shall be
submitted as follows:
As to the Complainant
Jennifer A. Tomas
Assistant Attorney General (or other designee)
Environmental Bureau
188 W. Randolph St.,
2 0 th
Floor
Chicago, Illinois 60601
Maureen Wozniak
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
As to the Respondent
Donald L. Brown
Executive Vice President
Bag Makers, Inc.
6606 South Union Road
Union, IL 60180
H.
Modification of Stipulation
The parties may, by mutual written consent, agree to extend
any compliance dates or modify the terms of this Stipulation. A
request for any modification shall be made in writing and
submitted to the contact persons identified in Section VTII.G.
Any such request shall be made by separate document, and shall
not be submitted within any other report or submittal required by
this Stipulation. Any such agreed modification shall be in
writing, signed by authorized representatives of each party, and
then accompany a joint motion to the Illinois Pollution Control
Board seeking a modification of the prior order approving and
accepting the Stipulation to approve and accept the Stipulation
as amended.
I.
Enforcement of Board Order
1.
Upon the entry of the Board's order approving and
accepting this Stipulation and Proposal for Settlement, that
.Order is a binding and enforceable order of the Illinois
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
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
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.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
WHEREFORE, Complainant and Respondent 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 of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
(I(S(0A3'W
~DTE
Environmenta Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY
OET
.MSSkA~
DATE:
Chief Legal Counsel
Bag Makers, Inc.
BY:_________DATE:_
_____
DONALD L. BROWN
Executive Vice President
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
CERTIFICATE OF SERVICE
I, JENNIFER A. TOMAS, an Assistant Attorney General,
.certify that on the
16th
day of November 2005, I caused to be
served by First Class United States 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.
NNIF A.TOMAS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 16, 2005
