BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PCB No. 2008,051
HIGHLAND BAKING COMPANY, INC., an
Illinois corporation,
)
)
)
)
)
)
)
)
)
)
(Enforcement, Air)
Respondent.
NOTICE OF FILING
TO:
Joseph R. Podlewski
Dykema
lO S. Wacker Drive
Suite
2300
Chicago, Illinois 60606
PLEASE
TAKE NOTICE that on the 29th day of January, 2009, I filed with the
Clerk of the Illinois
Pollution Control Board a Stipulation and Proposal for Settlement
and a Motion to Request Relief from Hearing Requirement, copies
of which are attached
hereto and are hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
BY:~~
NA CY].IKSK
Assistant Attorney General
Environmental Bureau
North
69 West Washington St., Suite 1800
Chicago, Illinois 60602
312,814,8567
THIS FILING IS SUBMITTED ON RECYCLED PAPER
\
Electronic Filing - Received, Clerk's Office, January 29, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
HIGHLAND BAKING COMPANY, INC., an
Illinois corporation,
Respondent .
PCB No. 2008-051
(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 March 12, 2008, Complaint number PCB 08-51 was filed with the
Illinois
Pollution Control Board ("Board") in this matter.
2.
On January 29,.2009, a Stipulation and Proposal for Settlement was filed
with the Board.
3.
Section
31 (c) (2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2006), effective August 1, 1996, 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.
4.
Section 31 (c)(2) of the Act, 415 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
Electronic Filing - Received, Clerk's Office, January 29, 2009
. 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).
5.
No hearing is currently scheduled in the instant case.
6.
The Complainant requests the relief conferred 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, 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
LISA MADIGAN
Attorney General of the
State of Illinois
NANC
BY'~Cht~
J, TI
~
KY
Assistant Attorney General
Environmental Bureau
North
69 West Washington St., Suite 1800
Chicago, Illinois 60602
312,814,8567
Electronic Filing - Received, Clerk's Office, January 29, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
HIGHLAND BAKING COMPANY, INC., an
Illinois corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 2008-051
(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 HIGHLAND BAKING COMPANY, INC. ("Respondent")("Parties to the Stipulation and
Proposal for Settlement"), 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 of facts is made and agreed upon for purposes of settlement only and as
a factual basis for the Board's approval of this Stipulation and issuance of relief. None of the facts
stipulated herein shall be introduced into evidence in any other proceeding regarding the
violations of the Illinois Environmental
Protection Act ('!Act"), 415 ILCS 5/1
et seq.
(2006), the
Illinois
EPA's regulations, and the Board's regulations, alleged in the Complaint except as
otherwise provided herein.
It
is the intent of the parties to this Stipulation that it be a final
adjudication
of this matter.
1
Electronic Filing - Received, Clerk's Office, January 29, 2009
I.
STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On March 12,2008, 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 request of
the Illinois EPA, pursuant to Section 31 of the Act, 415 ILCS
5131
(2006), 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
(2006).
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. At all times relevant to
the Complaint, Respondent owned and operated a bakery located at 3665 West Lunt Avenue,
Lincolnwood, Cook County, Illinois
("Facility").
B.
. Allegations of Non,Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act, the Illinois
EPA regulations, and Board regulations at the Facility:
COUNT I:
CONSTRUCTING EMISSION SOURCES WITHOUT A PERMIT
Section 9(b) of the Act, 415 ILCS
519(b)(2006),
and Section 201.142 of
the Board Air
Pollution Regulations, 35 Ill. Adm. Code 201.142.
COUNT II: OPERATING NEW EMISSION SOURCES WITHOUT A PERMIT
Section 9(b) of the Act, 415 ILCS
5/9
(b) (2006), and Section 201.143 of
the Board Air
Pollution Regulations, 35 Ill. Adm. Code 201.143.
2
- -----------------------------------------,
COUNT III: OPERATING A MAJOR STATIONARY SOURCE
WITHOUT A CAAPP PERMIT
Section 39.5(6) (b) of the Act, 415 ILCS 5/39.5(6) (b) (2006).
COUNT IV: FAILURE TO COMPLY WITH NEW SOURCE REVIEW
REQUIREMENTS
Section 9(a) of the Act, 415 ILCS 5/9(a)(2006), and Sections 203.201 and
203.203 (a) of the Board Air Pollution Regulations, 35 Ill. Adm. Code
203.201 and
203.z03(a).
COUNT V: FAILURE TO COMPLY WITH EMISSION REDUCTION
MARKET SYSTEM REQUIREMENTS
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and Section
205.31O(a)(3)ofthe Board Air Pollution Regulations, 35 Ill. Adm. Code
205.31O(a)(3).
COUNT VI: FAILURE TO SUBMIT COMPLETE AND ACCURATE
ANNUAL
EMISSIONS REPORTS
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), Section 201.302 (a) of the
Board Air
Pollution Regulations, 35 Ill. Adm. Code 201.302(a), and
Section 254.137(a) of the Illinois EPA Air Pollution Regulations, 35 Ill.
Adm. Code 254.137(a).
C.
Non,Admission of Violations
The Respondent neither admits nor denies the violations alleged in the Complaint filed in
this matter and referenced within
Section I.B herein.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Parties to the Stipulation and
Proposal for Settlement, 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
3
Electronic Filing - Received, Clerk's Office, January 29, 2009
comply with the provisions of this Stipulation. 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, the Illinois EPA regulations and the Board regulations for all
violations alleged in the Complaint in this matter,
for purposes of Sections 39 and 42 of the Act,
415
ILCS 5/39 and 42 (2006).
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 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.
4
In response to these factors, the parties to this Stipulation state the following:
1.
Illinois EPA's information-gathering responsibilities were hindered by the
Respondent's alleged violations.
2.
There was a social and economic benefit to the Lincolnwood site.
3.
Operation of the Facility
was suitable for the area in which it occurred.
4.
Obtaining the requisite permits prior to construction and operation of air
emission sources at the Facility, and compliance with their terms
as well as submitting the
requisite reports,
was both technically practicable and economically reasonable.
5.
Respondent ceased operations at the Facility in February 2007.
IV. CONSIDERATION OF SECTION
42(h)
FACTORS
. Section 42 (h) of the 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 of record in
mitigation or aggravation of penalty, including but not limited
~o
the
following factors:
1.
the duration and graviry 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;
5
Electronic Filing - Received, Clerk's Office, January 29, 2009
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 to this Stipulation state
as follows:
1.
The Respondent failed'to obtain a permit to construct and operate air emission
units prior to beginning construction activities and operating the air emission units at the
Facility. Additionally, the source failed to timely submit to the Illinois
EPA certain records
concerning its air pollution emissions, including annual emission reports,
as required. The
unpermitted operations began on or around June 1992. The source ceased operations in February
2007.
2.
Respondent ceased operations at the Lincolnwood site in February 2007.
3.
The Respondent recognized an economic benefit representing avoided air
pollution site
fees for the years 1992 through 2005. The civil penalty of$75,000.00 far exceeds
any economic benefit derived
by the Respondent.
6
Electronic Filing - Received, Clerk's Office, January 29, 2009
~.
The complainant has determined, based upon the specific facts of this matter, that
a penalty of Seventy-five Thousand dollars ($ 75,000.00) will serve to deter further violations and
aid in future voluntary compliance with the Act, the Illinois
EPA regulations, and Board
regulations.
5.
To Complainant's knowledge, Respondent has no previously adjudicated
violations of the Act.
6.
Self-disclosure is not
a~
issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of Seventy-five Thousand
dollars
($75,000.00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation.
B.
Interest and Default
1.
If the Respondent fails to make any payment required by this Stipulation on or
before the date upon which the payment
is due, the Respondent shall be in default and the
remaining unpaid balance of the penalty, plus any accrued interest, shall be due and owing
immediately. In the
event of default, the Complainant shall be entitled to reasonable costs of
collection, including reasonable attorney's
fees.
7
Electronic Filing - Received, Clerk's Office, January 29, 2009
. 2.
Pursuant to Section 42 (g) of the Act, interest shall accrue on any penalty amount
owed
by the Respondent not paid within the time prescribed herein. Interest on unpaid penalties
shall begin
to accrue from the date such are due and continue to accrue to the date full payment
is received. 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.
C.
Payment Procedures
All payments required
by this Stipulation shall be made by certified check or money order
payable to the Illinois
EPA for deposit as follows:
a.
Eight Thousand, Six Hundred Seventy-five Dollars ($8,675.00) into the
Environmental
Permit and Inspection Fund; and
b.
Sixty-six Thousand, Three Hundred Twenty-five Dollars ($66,325.00) into the
Environmental
Protection Trust Fund (UEPTF"). 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 62794-92 76
The name, case number and the Respondent's federal-tax identification number shall appear on
the face of each certified check or money order. Copies of each certified check or money order
and any transmittal letter shall be sent to:
Nancy
J. Tikalsky
Environmental Bureau
Illinois Attorney General's
Office
8
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
D.
Future Compliance
1.
This Stipulation in no way limits or 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, the Illinois
EPA Regulations, and the Board Regulations.
2.
The Respondent shall cease and desist from future violations of the Act, the
Illinois
EPA regulations, and Board Regulations that were the subject matter of the Complaint.
E.
Release from Liability
In consideration of the Respondent's payment of the $75,000.00 penalty, the completion
of all activities hereunder, and its commitment to Cease and Desist as contained in Section V.D.
above, and upon the Board's approval of this Stipulation, the Complainant releases, waives and
discharges the Respondent and any
of its
offic~rs,
directors, agents, employees or successors or
assigns from any further liability or penalties
for the violations of the Act, the Illinois EPA
regulations, 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 March 12,2008. 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:
9
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 may have against any person, as defined by Section
3.315 of the Act, 415 ILCS 5/3.315, or entity other than the Respondent"
F.
Enforcement of Stipulation
Upon the entry of the Board's Order approving and accepting this Stipulation, that Order
is a binding and enforceable order of the Board and may be enforced as such through any and all
available means.
G.
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 of this
Stipulation and to legally bind them to it.
10
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
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental
Protection Agency
I
BY J-
R
rn/7
~~=C4--
____
B_Y:--=
Environmental Bureau
Assistant Attorney General
a~
1.....
-----
----~-
-
~-----
ROB
T
A.
MES INA
Chief Legal Counsel
HIGHLAND BAKING
COMPANY, INC.
BY: ________________________________ _
N ame: _________________________ _
Title: ________________ _
DATE:
11
.....
Jan-14-09
11 :55am
From-IAGO-ENVIRONMENTAL BUREAU
+3128142347
T-279
P.OI2/013
F-382
WHEREFORE, (he parties to: this Stipuiarion request that the Board adopt and accept
the foregoing Stipulation and Proposal
fOT
Settlement: as written.
PEOPLE
OF THE STATE
OF
ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATIHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigarion Division
BY; __
====~~~~~~~~
____ _
ROSEMARIE CAZEAU, Chief
Enviromncntal Bureau
Assistant Attorney General
DATE: ____________________________________ _
THE
ILLINOIS ENVIRONMENTAL
PROTECfION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
~~~~
__
~~
________ __
ROBERT
A.
MESSINA
Chief
Lcga~
Counsel
DAT,E: ____
~
______________ __
11
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
HIGHLAND BAKING COMPANY, INC., an
Illinois corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 2008-051
(Enforcement-Air)
CERTIFICATE OF SERVICE
I,
Nancy J. Tikalsky, an Assistant Attorney General, dp certify that a true and correct
copy
of the Complaint and Notice of Filing were sent by certified mail with return receipt
requested to the persons listed
on the Notice of Filing on January 29,2009.
Electronic Filing - Received, Clerk's Office, January 29, 2009
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