BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STIPULATION AND PROPOSAL FOR SETTLEMENT
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CERTIFICATE OF SERVICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

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,

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:

On March 12, 2008, Complaint number PCB 08-51 was filed with the

Illinois

Pollution Control Board ("Board") in this matter.

On January 29,.2009, a Stipulation and Proposal for Settlement was filed

with the Board.

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.

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).

No hearing is currently scheduled in the instant case.

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

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,

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.

is the intent of the parties to this Stipulation that it be a final

adjudication

of this matter.

Electronic Filing - Received, Clerk's Office, January 29, 2009

STATEMENT OF FACTS

Parties to the Stipulation

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.

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).

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").

. 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.

- -----------------------------------------,

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).

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

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:

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

the social and economic value of the pollution source;

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;

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

any subsequent compliance.

In response to these factors, the parties to this Stipulation state the following:

Illinois EPA's information-gathering responsibilities were hindered by the

Respondent's alleged violations.

There was a social and economic benefit to the Lincolnwood site.

Operation of the Facility

was suitable for the area in which it occurred.

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.

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

the

following factors:

the duration and graviry of the violation;

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;

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;

Electronic Filing - Received, Clerk's Office, January 29, 2009

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;

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

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:

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.

Respondent ceased operations at the Lincolnwood site in February 2007.

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.

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.

To Complainant's knowledge, Respondent has no previously adjudicated

violations of the Act.

Self-disclosure is not

issue in this matter.

The settlement of this matter does not include a supplemental environmental

project.

V. TERMS OF SETTLEMENT

Penalty Payment

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.

Interest and Default

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.

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.

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:

Eight Thousand, Six Hundred Seventy-five Dollars ($8,675.00) into the

Environmental

Permit and Inspection Fund; and

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

69 West Washington Street, Suite 1800

Chicago, Illinois 60602

Future Compliance

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.

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.

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:

criminal liability;

liability for future violation of state, federal, local, and common laws and/or

regulations;

liability for natural resources damage arising out of the alleged violations; and

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"

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.

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.

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

BY J-

rn/7

~~=C4--

____

B_Y:--=

Environmental Bureau

Assistant Attorney General

1.....

-----

----~-

~-----

ROB

MES INA

Chief Legal Counsel

HIGHLAND BAKING

COMPANY, INC.

BY: ________________________________ _

N ame: _________________________ _

Title: ________________ _

DATE:

.....

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

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

MESSINA

Chief

Lcga~

Counsel

DAT,E: ____

______________ __

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

HIGHLAND BAKING COMPANY, INC., an

Illinois corporation,

Respondent.

)

PCB No. 2008-051

(Enforcement-Air)

CERTIFICATE OF SERVICE

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