Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
BEHR IRON & STEEL, INC., an Illinois
Corporation,
Respondent.
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PCB No. 2009 - 013
(Enforcement - Air)
NOTICE OF FILING
(VIA ELECTRONIC FILING) .
TO:
See attached service list
PLEASE TAKE NOTICE that today, September 5, 2008, I have electronically
filed with the Office
of the Clerk of the Pollution Control Board a Motion to Request
Relief from Hearing, and a Stipulation and Proposal for Settlement as to Respondent
Behr Iron
&
Steel, Inc., a copy of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois
BY:
o
N NICHOLE CUNN
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
SERVICE LIST
Mr. Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
Jon S. Faletto
Hinshaw
&
Culbertson LLP
416 Main Street - 6th Floor
Peoria, IL 61602
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
BEHR IRON
&
STEEL, INC., an Illinois
corporation,
Respondent.
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PCB No. 2009 - 013
(Enforcement - Air)
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
hearing requirement in the above-captioned matter. In support thereof, the Complainant
states as follows:
1.
On September 5, 2008, the Complaint was accepted for hearing by the
Pollution Control Board ("Board") in this matter. On September 5, 2008, a Stipulation
and Proposal for Settlement with Respondent Behr Iron
&
Steel, Inc. was filed with the
Board. If accepted, the Stipulation and Proposal for Settlement will dispose of the case.
2.
Section 31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2006), 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
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
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 reliefto be published and sent in the same manner as is required for
hearing pursuant to subdivision (1)
ofthis 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.
Both parties agree that a hearing on the Stipulation and Proposal for
Settlement is not necessary, and respectfully request relief from such hearing as allowed
by Section 31(c)(2) of the Act, 415 ILCS 5/31(c)(2) (2006).
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS,
by
LISA MADIGAN, Attorney General of the State of Illinois, respectfully 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) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex ret.
LISA MADIGAN, Attorney General
of teState of Illinois
BY:
ORREN NICHOLE CUNN
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
18
th
FIr.
Chicago, Illinois 60602
(312) 814-3532
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OFILLINOIS,
ex rei.
LISA MADIGAN, Attorney General
ofthe State of Illinois,
Complainant,
v.
BEHR IRON
&
STEEL, INC., an Illinois
corporation,
Respondent.
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PCB No. 2009 - 013
(Enforcement - Air)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
ofthe State ofIllinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
BEHR IRON
&
STEEL, 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. This stipulation
offacts is made and agreed upon for purposes ofsettlement
only and as a factual basis for the Board'sapproval ofthis Stipulation and issuance
ofrelief. None of
the facts stipulated herein shall be introduced into evidence in any other proceeding regarding the
alleged violations
ofthe Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1
et seq.
(2006),
and the Board's regulations, as alleged in the Complaint.
It
is the intent of the parties to this
Stipulation that it be a final adjudication ofthis matter.
Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On September 5, 2008, a Complaint was filed on behalf of the PEOPLE OF THE
STATE OF ILLINOIS
by Lisa Madigan, Attorney General ofthe State ofIllinois, on her own motion
and upon the request
of the Illinois EPA, pursuant to Section 31 ofthe Act, 415 ILCS 5/31 (2006),
against the Respondent.
2.
The Illinois EPA is an administrative agency ofthe State ofIllinois, created pursuant
to Section 4 of the Act, 415 ILCS 5/4 (2006).
3.
At all times relevant to the Complaint, Respondent BEHR IRON
&
STEEL, INC..
("Respondent"), was and is an Illinois corporation that is authorized to transact business in the State
ofIllinois. Respondent owns and operates a metal processing facility located at 208 Quaker Road in
Rockford, Winnebago County, Illinois ("Facility").
B.
Allegations
of Non-Compliance
In
the Complaint, Complainant and the lllinois EPA alleged that the Respondent violated the
following provisions
of the Act and Board Regulations:
Count
I:
Count II:
Count III:
Failure to Obtain a Construction Permit in violation of Section
9(b)
of the Act and Section 201.142 of the Board Air Pollution
Regulations
Failure to Obtain an Operating Permit in violation of Section
9(b)
of the Act and Section 201.143 of the Board Air Pollution
Regulations
Failure to Submit Annual Emission Reports in violation of
Section 9(a) of the Act and Section 201.302 of the Board Air
Pollution Regulations
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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Count IV:
Count V:
Failure to Submit Site-Specific Test Plans and Conduct
Performance Testing Pursuant to the NESHAP
in violation of
Section 9.1(d)(1) of the Act and Sections 63.1511(a)
&
(b) of the
NESHAP for secondary aluminum production
Failure to Submit Notice
of Compliance
Status Report Pursuant
to the NESHAP
in violation of Section 9.1(d)(1) of the Act and
Section 63 .1515(b)
of the NESHAP for secondary aluminum
production
C.
Non-Admission of Violations
The Respondent represents that it has entered into this Stipulation solely for the purpose of
settling and compromising disputed claims without having to incur the time, effort, and expense of
contested litigation. By entering into this Stipulation and complying with its terms, the Respondent
does
not admit the allegations ofviolation within the Complaint and referenced within Section LB
herein, and this Stipulation shall
not be interpreted as including any such admission.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA 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.
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c)(2006), 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 ofinjury to, or interference with the protection ofthe
health, general welfare and physical property of the people;
2.
the social and economic value of the pollution source;
3.
the suitability or unsuitability ofthe 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 parties to this Stipulation state the following:
1.
Complainant asserts that human health and the environment were threatened and the
Illinois EPA's information gathering responsibilities were hindered by the Respondent's alleged
violations.
2.
The Facility provides social and economic benefit.
.
3.
Operation of the Facility is suitable for the area in which it is located.
4.
Maintaining compliance with state and federal permitting, reporting and compliance
obligations is both technically practicable and economically reasonable.
5.
Respondent has subsequently complied with the Act and the Board Regulations by
obtaining
an operating permit from Illinois EPA for all regulated emissions sources and air pollution
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Electronic Filing - Received, Clerk's Office, September 5, 2008
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control equipment and by terminating operation of the aluminum sweat furnace at its Facility.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
.Section 42(h) ofthe Act, 415 ILCS 5/42(h)(2006), provides as follows:
In
determining the appropriate civil penalty to be imposed under. . . this Section,
the Board is authorized to consider any matters ofrecord in mitigation or aggravation
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 Asupplemental
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 to this Stipulation state as follows:
1.
Complainant asserts that Respondent constructed and began operating emissions
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
sources at its Facility, without a first obtaining construction and operating permits from the Illinois
EPA, in approximately 1999. Respondent submitted a permit application to the Illinois EPA for the
emission sources in May 2005. The alleged violations were fully resolved on May
29,2008, when
the Illinois EPA issued an operating permit to the Respondent for all regulated emission sources and
pollution control equipment at the Facility. Complainant further asserts that Respondent was not in
compliance with the NESHAP testing and reporting requirements from the initial compliance
deadline in June 2000 until December 2004, when Respondent ceased operations
of its aluminum
sweat furnace at the Facility.
2.
Since February 2005, Respondent has acted diligently in attempting to achieve and
maintain compliance with the Act, Board regulations and applicable federal regulations.
3.
The Complainant maintains a settlement amount totaling Ten Thousand Dollars
($10,000.00) reflects the duration
of noncompliance and lowest cost alternative for achieving
compliance associated with economic benefits derived by Respondent.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts of
this matter, that a penalty ofTen Thousand Dollars ($10,000.00) will serve to deter further violations
and aid in future voluntary compliance with the Act and Board regulations.
5.
On November 16, 1995, the Board issued an opinion and order requiring that Behr
Precious Metals, Inc., pay a civil penalty in the amount of$10,000.00 in settlement
ofviolations of
Sections 9(a)-(b) of the Act, 415 ILCS 5/9(a)-(b), and Sections 201.142 and 201.143 of the Board
Regulations, 35
Ill.
Adm. Code 201.142 and 201.143, that 'were the subject of Complainant's
complaint.
See PCB 96-80.
On May
6, 1999, Behr Iron
&
Steel, Inc. sent a notification letter to the
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
Illinois EPA stating that the name ofBehr Precious Metals, Inc. had been changed to Behr Specialty
Metals, a Division
ofBehr Iron
&
Steel, Inc. However, as verified by William J. Bremner, President
ofBehr Iron
&
Steel, Inc., the letter was inaccurate. Behr Precious Metals did not change its name to
Behr Specialty Metals, a Division
ofBehr Iron and Steel, Inc., and Behr Precious Metals, Inc., and
Behr Iron
& Steel,
Inc~,
have existed at all times as separate and distinct corporate entities with no
relationship to one another.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement ofthis matter does not include a supplemental environmental project.
V.'TERMS OF SETTLEMENT
A.
Civil Penalty
Respondent shall pay a civil penalty ofTen Thousand Dollars ($10,000.00) within thirty (30)
days from the date the Board adopts and accepts this Stipulation.
B.
Payment Procedures
1.
The civil penalty payment required by this Stipulation shall be made by certified
check
or money order payable to the Illinois EPA for deposit into the Environmental Protection Trust
Fund. Payments shall
be sent by first class mail and delivered to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
2.
The name, case number and the Respondent'sfederal tax identification number shall
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
appear on the face of 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
Environmental Bureau
Illinois Attorney General's Office
69 West Washington St., Suite 1800
Chicago, Illinois 60602
C.
Future Compliance
1.
Effective immediately, Respondent shall ensure that no emissions source or air
pollution control equipment is constructed
or operated at the Facility without first obtaining a
construction
or operating permit from the Illinois EPA as required by the Act and Board regulations.
2.
In
addition to any other authority, the Illinois EPA, its employees and representatives,
and the Attorney General, her employees and representatives, shall have the right
of entry into and
upon the Respondent'sFacility which is the subject
ofthis Stipulation, at all reasonable times for the
purposes
of conducting inspections and evaluating compliance status.
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.
3.
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.
4.
The Respondent shall cease and desist from future violations
of the Act and Board
regulations that were the subject matter
of the Complaint.
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
D.
Release from Liability
In consideration of the Respondent's payment of a Ten Thousand Dollar ($10,000.00)
penalty, its commitment to Cease and Desist as contained in Section V.CA above, and completion
of
all activities required hereunder, the Complainant releases, waives and discharges the Respondent
from any further liability or penalties for the violations
of the Act and Board regulations that were
the subject matter
ofthe Complaint. The release set forth above does not extend to any matters other
than those expressly specified in Complainant's Complaint filed on September 5, 2008. 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 violations;
c.
liability for natural resources damage arising out of the alleged violations; and
d.
the Respondent's failure to satisfy the requirements ofthis 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 (2006), other than the Respondent.
E.
Execution of Stipulation
The undersigned representatives for each party to this Stipulation certify that they are fully
authorized
by the party whom they represent to enter into the terms and conditions ofthis Stipulation
and to legally bind them to it.
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
WHEREFORE, the parties to this Stipulation 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:
DATE:.__----'--_
----l~-=------
BEHR IRON
&
STEEL, INC.
BY:
Name:
_
Title:
_
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
ROBER
A.
MESSINA
Chief Legal Counsel
DATE:
<t;J-=.6-+-J_b_g
_
-4
I
DATE:
_
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
E.
Execution of Stipulation
The undersigned representatives for each party to this Stipulation certify that they are fully
authorized by the party whom they represent to enter into the terms and conditions
ofthis Stipulation
and to legally bind them to it.
WHEREFORE, the parties to this Stipulation 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:
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
Assistant Attorney General
DATE:
_
BEHR IRON
&
STEEL, INC.
BY:
~((.<=f~
Name:
L.e../Q..t-I.J R.
'::o~c..ki~5
Title:
-fv.e...
tl\..)
v V'-(,...v
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
--------------
ROBERT A. MESSINA
Chief Legal Counsel
DATE:
DATE:
S
e.p+' 3
~o8
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Electronic Filing - Received, Clerk's Office, September 5, 2008
* * * * * PCB 2009-013 * * * * *
CERTIFICATE OF SERVICE
I, Lorren Nichole Cunningham, Assistant Attorney General, do certify that on the
5
th
day of September, 2008, I caused to be served upon Respondent Behr Iron
&
Steel,
Inc. the foregoing Motion to Request Relief from Hearing, Stipulation and Proposal for
Settlement and Notice
of Filing by depositing the same at the United States Postal
Service facility located at 100 W. Randol ,Chicago, Illinois.
RREN NICHOLE C
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
18
th
Fir.
Chicago, Illinois 60602
(312) 814-3532
