BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PHOENIX FINISHING, INC.,
Respondent.
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PCB 05-202
(Enforcement- Air)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on September 25,2007, we electronically filed with the
Illinois Pollution Control Board a MOTION TO REQUEST RELIEF FROM HEARING
REQUIREMENT and a STIPULATION AND PROPOSAL
FOR SETTLEMENT, true and
correct copies
of which are attached and hereby served upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
of the State of Illinois
By:
tl
. Nichole Cunningham
Assistant Attorney General
Environmental Bureau North
69
W. Washington, Suite 1800
Chicago, Illinois 60602
Tel: 312.814.3532
Electronic Filing, Received, Clerk's Office, September 25, 2007
SERVICE LIST
Mr. Bradley Halloran .
Hearing Officer
Illinois Pollution Control
Board
100 W. Randolph Street, 11 th Floor
Chicago, IL 60601
Mr.
Carey S. Rosemarin
Law Offices of Carey S. Rosemarin, RC
500 Skokie Boulevard, Suite 510
Northbrook,
IL 60062
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Electronic Filing, Received, Clerk's Office, September 25, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondent.
Complainant
PHOENIX FINISHING, INC., an Illinois
corporation,
PCB 05-202
(Enforcement- Air)
PEOPLE OF
THE STATE OF ILLINOIS, )
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MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT
Now comes the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and requests relief from the requirement of
a hearing in this matter. In support thereof, the Complainant states as follows:
1.
Along with this Motion, Complainant is filing a Stipulation and Proposal for
Settlement executed between Complainant and Respondent, PHOENIX FINISHING, INC.
2.
Section
31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31 (c)(2) (2006), provides as follows:
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
ofthe 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).
Electronic Filing, Received, Clerk's Office, September 25, 2007
3.
No hearing is now scheduled in this matter.
4.
The Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
relief from the requirement
of a hearing pursuant to 415 ILCS 5/31 (c)(2) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by
LISA MADIGAN Attorney General of the
State
of Illinois
Matthew
J. Dunn, Chief
Environmental Enforcement! Asbestos
Litigation Division
By:
. Nichole Cunningham
Assistant Attorney General
Environmental Bureau
69
W. Washington St., Suite1800
Chicago, Illinois 60602
Tel: (312) 814-3532
Electronic Filing, Received, Clerk's Office, September 25, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PHOENIX FINISHING, INC., an Illinois
corporation,
Respondent.
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PCB 05-202
(Enforcement - Air)
STIPULATION AND 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 PHOENIX FINISHING, INC., an Illinois corporation .
("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 up.on 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 the Board approves and enters this Stipulation,
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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
ILCS
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 June 3, 2005, a Complaint was filed on behalf of the People of the
State
of Illinois by Lisa Madigan, Attorney General of the State ofIllinois, on her own
motion and upon the 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 ofIllinois,
created pursuant
to Section 4 of the Act, 415 ILCS 5/4 (2004), and charged,
inter alia,
with the duty of enforcing the Act.
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.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
B. Site Description
1.
At all times relevant to the Complaint, Respondent operated a metal
finishing facility located at 1090 Industrial Drive, Bensenville, DuPage County, Illinois
("site"). As part
of its process, Respondent conducts parts'coating and silk screening
operations.
2.
The Illinois EPA conducted an inspection of the site in response to citizen
complaints about paint spot damage on automobiles parked nearby. Inspectors found
liquid coating, powder coating and silk screening operations on site.
3.
Illinois EPA investigators found that the liquid coating, powder coating
and silk screen operations on site vented
to the atmosphere. Emission units at the facility
have included up to three (3) coating spray booths, three (3) ovens, and silk screening
operations.
4.
The liquid coating and silk screen operations utilize coating materials that
contain, have the potential to emit, and do emit, volatile organic materials ("YOM") such
as inks, dilutents and cleaning agents.
5.
At various times relevant to the Complaint, Respondent was required to
obtain a permit for any emission sources from the Illinois EPA and failed to do so.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions
of the Act and Board Air Pollution Regulations:
COUNT I:
Failure to Obtain Air Pollution Permits
Yiolation of Section 9(b) of the Act, 415 ILCS 5/9(b) (2004), and
35 Ill. Adm. Code 201.143.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
COUNT II: Failure to Comply with Emission Limitation Standards
Violation
of Section 9(a) of the Act, 415 ILCS 5/9(a) (2004), and
35 Ill. Adm. Code 218.204(j).
COUNT III: Failure to File an Annual Emissions Report (AER)
Violation
of Section 9(b) of the Act, 415 ILCS 5/9(b) (2004), and
35 Ill. Adm. Code 201.302(a) and 254.132(a).
D. Admission of Violations
The Respondent neither admits nor denies violations alleged in the Complaint
filed in this matter and referenced in Section III.C herein.
E. Compliance Activities to Date
1.
On or around June 23,2006, Respondent submitted a Compliance
Certification, showing compliance with the Board'sdaily-weighted average limitations in
Section 218.205
ofthe Board'sAir Pollution Regulations, 35 Ill. Adm. Code 218.205, by
manually measuring the volume of paint used in each coating booth and calculating the
daily-weighted average based on volume and the VOM content
of the paints.
2.
On or around April 29, 2005, Respondent submitted an application for a
Federally Enforceable State Operating Permit (FESOP) to the Illinois EPA. Respondent
has supplemented its FESOP application, providing all requested materials to the Illinois
EPA.
3.
On or around June 23, 2006, at the Illinois EPA's direction, Respondent
submitted calculations to the Illinois EPA documenting its "potential to emit" (PTE)
of
VOM, using the method required by the Illinois EPA.
4.
On or around June 23, 2006, Respondent certified to the Illinois EPA that
it is in compliance with the Board'scoating regulations.
5.
Respondent submitted AERs for calendar years 2003 through 2005.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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 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) ofthe Act, 415 ILCS 5/33(c) (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, 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.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
'In
response to these factors, the parties state the following:
1.
Human health and the environment were threatened, and the Illinois
EPA's information gathering responsibilities were hindered, by Respondent's violations.
2.
There is social and economic benefit to the facility.
3.
Proper operation of the facility is suitable for the area in which it is
located.
4.
Obtaining a permit and complying with its terms, complying with the
Board'scoating regulations, and submitting AERs when required are technically
practicable and economically reasonable.
5.
Respondent has subsequently complied with the Act and the Board
Regulations regarding coating operations. Respondent has committed to comply with the
requirement to obtain a permit and to submit all future required AERs.
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2004), provides, in pertinent part, 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
ofpenalty, 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;
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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.
In response to these factors, the parties state as follows:
1.
Since at least 2003, Respondent has conducted liquid coating, powder
coating and silk screening operations without a permit. From 1996 until 2004,
Respondent used some non-compliant coatings. Respondent failed to submit an annual
emissions report ("AER") to the Illinois EPA in 2003, when the facility's increase in PTE
triggered the permitting requirements and this reporting requirement. Permitting and
reporting requirements, as well as the Board'spaper coating regulations, are
of
programmatic significance to the Illinois EPA.
2.
Since notified of its violations, Respondent has been diligent in complying
with the permitting and coating regulations. Respondent has committed to timely submit
all future required AERs.
3.
Respondent received an economic benefit of Fifteen Hundred Dollars
($1,500.00) from avoided permit fees as a result
of its noncompliance with the Act and
Board Regulations.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
4.
A penalty of Two Thousand Dollars ($2,000.00), representing the
maximum amount that Phoenix Finishing
is able to pay, will serve to deter further
violations by the Respondent
of the Act and Board Air Pollution Regulations.
5.
Respondent does not have any previously adjudicated violations of the Act
and Board Air Pollution Regulations.
6.
Self-disclosure is not at issue in this matter.
7.
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 in the sum of Two Thousand
Dollars ($2,000.00) 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 fonn 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 certified check or money order payable to the Illinois EPA.
Fifteen Hundred Dollars ($1,500.00), representing avoided pennit fees, shall be
designated
to the Environmental Protection Pennit and Inspection Fund, and Five
Hundred Dollars ($500.00), representing duration and gravity, shall be designated
to the
Environmental Protection Trust Fund ("EPTF"). All payments shall be submitted to:
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Electronic Filing, Received, Clerk's Office, September 25, 2007
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and number
of the case and Respondent's Federal Employer Identification
. Number ("FEIN") shall appear on the certified check
or money order. A copy of the
certified check
or money order and any transmittal letter shall be sent to:
L. Nichole Cunningham
Assistant Attorney General
Environmental Bureau
100 W. Randolph St.
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 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
or money order, payable to the Illinois EPA, designated to the EPTF 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:
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Electronic Filing, Received, Clerk's Office, September 25, 2007
II
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Joel Aronson
Phoenix Finishing, Inc.
1090 Industrial Drive
Bensenville, IL 60106
Carey S. Rosemarin
Law Offices
of Carey S. Rosemarin, P.e.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
4.
In the event
of default of this Section VIlLA, 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
1.
Respondent shall timely submit all future required AERs.
2.
Within 30 days
of receiving any request from the Illinois EPA to
supplement its pending FESOP application, Respondent shall submit the requested
materials to the Illinois EPA. Effective immediately upon issuance
of the FESOP,
Respondent shall comply with its terms and conditions.
3.
Respondent shall comply with the Act and applicable Board Air Pollution
Regulations.
c.
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 VIlLE below, the 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
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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f
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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) (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 IILC
("Allegations of Non-Compliance") of this Stipulation.
E.
Release from Liability
In consideration of the Respondent'spayment of the $2,000.00 penalty and
agreement to Cease and Desist, as contained in Section VIILD herein, and upon the
Pollution Control
Board's acceptance and approval of the terms of this Stipulation, 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 referenced herein. The release set forth above does not extend to any
matters other than those expressly specified in Complainant's Complaint filed on June 3,
2005. The Complainant reserves, and this Stipulation is without prejudice to, all rights of.
the State
of Illinois against the Respondent with respect to all other matters, including but
not limited to, the following:
a.
Criminal liability;
b.
Liability for future violation
of state, federal, local, and common laws
and/or regulations;
c.
Liability for natural resources damage arising out of the alleged violations;
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Electronic Filing, Received, Clerk's Office, September 25, 2007
and
d.
Liability or claims based on the Respondent s failure to satisfy the
requirements
of this Stipulation.
Nothing in this Stipulation is intended as a waiver, discharge, release;
or covenant
not to sue for any claim
or cause of action, administrative or judicial, civil or criminal,
past
or future, in law or in equity, which the State of Illinois or the Illinois EPA may have
against any person, as defined
by Section 3.315 of the Act, 415 ILCS 5/3.315 (2004), or
entity other than the Respondent.
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 VIlLA ("Penalty Payment") of this
Stipulation shall be submitted as follows:
As to the Complainant
L. Nichole Cunningham
Assistant Attorney General
Environmental Bureau
69 W. Washington, 18th fir.
Chicago, Illinois 60602
Maureen Wozniak
Assistant Counsel
Illinois EPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Manager
Compliance Unit
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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As to the Respondent
Joel Aronson
Phoenix Finishing, Inc.
1090 Industrial Drive
Bensenville, IL 60106
Carey
S. Rosemarin
Law Offices
of Carey S. Rosemarin, P.e.
500 Skokie Boulevard, Suite 510
Northbrook, IL 60062
G.
Modification of Stipulation
The parties may, by mutual written consent, agree to 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 VIII.F. 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 to approve and accept the Stipulation as amended.
H.
Enforcement of Board Order
1.
Upon the entry of the Board's Order approving and accepting this
Stipulation, that 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 may be made
by mail and waives
any requirement
of service ofprocess.
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Electronic Filing, Received, Clerk's Office, September 25, 2007
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3.
The parties agree that, if the Board does not approve and accept this
Stipulation, 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 any Board Order accepting and approving such shall be severable.
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, September 25, 2007
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WHEREFORE, Complainant and Respondent request that the Board adopt and
accept the foregoing Stipulation as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
ILLINOIS ENVIRONMENTAL PROTECTION
AGENC
DATE:
----'~--+-----L---_
PHOENIX FINISHING,INC.
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,
A-rtoNC;O~
Title:
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15
DATE:
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Electronic Filing, Received, Clerk's Office, September 25, 2007
CERTIFICATE OF SERVICE
I, LORREN NICHOLE CUNNINGHAM, an Assistant Attorney General for the State of Illinois,
certify that on the
25
th
day of September, 2007, I caused to be served by U.S. Mail the foregoing
MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT and STIPULATION
AND PROPOSAL FOR SETTLEMENT to the parties named on the attached service list, by
depositing the same in postage prepared envelopes with the United States Postal Service located
at 100 West Randolph Street, Chicago, Illinois 60601.
Electronic Filing, Received, Clerk's Office, September 25, 2007
