tEB
I
I
200g
OFFICE
OF THE
ATIORNEY
GENERAL
STAIT
OFI
STATE
OF
ILLINOIS
UtiOn
C
9S
Lisa
Madigan
ATFORNEY
GENERAL
February
9,
2009
John
T. Therriault,
Assistant
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste. 11-500
100
West Randolph
Chicago,
Illinois
60601
Re:
People v.
Chemetco,
Inc.
PCB
No. 96-76
Dear
Clerk:
Enclosed
for
filing please
find the original
and
ten copies
of
a
Notice
of Filing,
Motion
to
Accept Stipulation
and
Proposal
for Settlement,
Motion
for Relief
from Hearing
Requirement
and
Stipulation
and Proposal
for Settlement
in regard to
the above-captioned
matter.
Please file
the
original
and
return
a
file-stamped
copy
of the
document
to
our office
in the
enclosed
self-
addressed,
stamped
envelope.
Thank
you for
your cooperation
and
consideration.
Very truly
yours,
4ames
L. Morgan
Environmental
Bureau
500
South Second
Street
Springfield,
Illinois 62706
(217)
782-9031
J
LM/pjk
Enclosures
500 South
Second Street,
Springfield,
Illinois
62706
• (217)
782-1090
• TTY: (877)
844-5461
• Fax:
(217)
782-7046
100 West
Randolph
Street, Chicago,
Illinois
60601 •
(312)
814-3000
• TTY: (800)
964-3013 • Fax:
(312)
814-3806
1001
East Main
flirhnnclatr
Tllinni
62901 • (61
529-6400
• ‘TT’Y (R77
67-99
• P
(61 ‘29-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
)
PCB No. 96-76
)
(Enforcement-Land)
)
)
)
NOTICE
OF
FILING
FEB
112009
To:
Livingston
Penni S. Livingston
Law Firm
STATE
OF
lLLtrd
os
on
Controi
5701
Perrin Road
POnUi
Fairview
Heights, IL 62208
PLEASE TAKE
NOTICE that on this date I mailed for filing with the Clerk ofthe Pollution
Control
Board of
the State of
Illinois
a
Motion to Accept Stipulation and Proposal for Settlement, Motion for
Relief
from Hearing
Requirement and
Stipulation and Proposal for Settlement, copies ofwhich are attached
hereto
and herewith
served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of
the
State of
Illinois
MATTHEW J. DU1’J, Chief
Environmental Enforcement/Asbestos
Litigation
Division
500
South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
February 9,
2009
V.
CHEMETCO,
INC., a Delaware Corp.
Respondent.
Environmental
Bureau
CERTIFICATE OF SERVICE
I hereby
certify that I did
on
the
9th day of February, 2009, send a true and correct
copy of
the
Motion
for
Relief
from Hearing Requirement, Motion
to Accept
Stipulation
and Proposal
for
Settlement
by First Class Mail, with
postage
thereon
fully
prepaid,
by depositing at
a
United
States
Post
Office in Springfield, Illinois,
To:
Penni S. Livingston, #06196480
Livingston
Law Firm
5701 Perrin Road
Fairview Heights, IL 62208
Carol Webb
Hearing
Officer
Illinois Pollution Control
Board
1021 North Grand
Avenue
East
P.O.
Box 19274
Springfield, IL 62794-9276
and the
Original
and
ten
copies
to:
John
T.
Therriault
Illinois Pollution
Control Board
James R.
ThompsOn Centert
100
W.
Randolph
St.,
Suite 11-500
Chicago,
IL 60601
M
,/
James L. MorgaJ
Senior Assistant Attorney General
3
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
MADISON COUNTY, ILLINOIS
PEOPLE
OF THE STATE OF
ILLINOIS,
)
exrel.
LISA MADIGAN,
)
Attorney
General
)
of the State
of Illinois,
)
Complainant,
)
vs.
)
PCBNo.CEVED
)
CLERk’S
OFFICE
CHEMETCO,
INC.
)
FEB
1
1
2009
Respondent.
)
STATE
OF
ILLINOIS
Pollution
Control
Board
MOTION
TO
ACCEPT
STIPULATION
AND PROPOSAL
FOR
SETTLEMENT
NOW
COMES
Complainant,
PEOPLE
OF THE STATE
OF
ILLINOIS,
ex
rel. LISA MADIGAN,
Attorney
General of
the
State
of Illinois
(“People”), and the
Respondent,
Chemetco, Inc.,
by
LAURA
GRANDY,
Bankruptcy Trustee
for the
Estate of Chemetco, Inc.
(“Chemetco
Estate”), and
moves
that the
Illinois Pollution
Control
Board grant the
parties’
motion
to accept their
Stipulation
and
Proposal
for Settlement
in the
above-captioned
matter. In support
of this
Motion,
the
parties
state
as
follows:
1.
On
October
10, 1996, a
Complaint was
filed on behalf
of the People of the State
of
Illinois
by
the
Attorney
General
of the
State of
Illinois
pursuant
to
Section
42(d) and (e)
of
the
Illinois
Environmental
Protection Act (“Act”),
415
ILCS
5/42(d) and
(e)(2002),
against
the
Respondent.
2.
On February
19, 1998,
the
Pollution
Control
Board issued an Interim
Opinion and
Order,
which
found
certain
facts
to be
undisputed
and that those
undisputed facts established
that
1
Respondent
had
violated
certain
provisions
of
the Act and
Board Regulations as alleged
in
the
People’s
Complaint.
3.
On
November
13, 2001, Respondent
filed
a
voluntary
petition
under
Chapter
7
of the
Bankruptcy
Code,
wherein
Laura K. Grandy
was
appointed
to
take control of
the
bankruptcy
estate
and has proceeded
with the liquidation
of Chemetco,
Inc.
4.
Since then, the
People and
the Chemetco Estate
have diligently
worked together
to
perform
the
necessary
cleanup
of the former
Chemetco, Inc.
property pursuant to
the Act
and its
promulgated
regulations.
5.
On
September 16, 2008,
the
People
and the
Chemetco
Estate
entered
into
an
Interim
Order
in the
companion
federal
court
case, wherein
the past
violations
of Respondent
are
being dealt
with
accordingly.
6.
The parties,
having reached
agreement on all
outstanding
issues in this matter,
have
prepared a
Stipulation
and
Proposal
for Settlement that
provides resolution
to
this
case
consistent
with
the purposes
of the Act.
2
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, and
the
Respondent, Chemetco,
Inc.,
hereby
request that
the Board
grant this motion to accept their
Stipulation and
Proposal
for Settlement
and cause
notice
of the
stipulation, proposal
and
request
for relief
to be
published
pursuant to 415
ILCS
5/31(c)(1) and
(2)
(2008) of the Act.
Respectfully
submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY/*’ø7
James L.
Morgan
LI
Environmental Bureau
Assistant Attorney General
500
South Second Street
Springfield,
Illinois 62706
CHEMETCO, INC,
LAURA GRANDY
BANKRUPTCY
TRUSTEE
BYr4’
JYC
Penni
S.
Livingston,
t’
2
T/
6196480
Livingston Law
Firm
5701 Perrin Road
Fairview
Heights, IL 62208
(618)
628-7700
Dated:
c2
/‘?/‘(
3
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
MADISON
COUNTY, ILLINOIS
PEOPLE
OF THE STATE
OF ILLINOIS,
)
FEB
1
1
2009
ex rel.
LISA
MADIGAN,
)
Attorney General
)
STATE
OF
IWNOIS
of
the
State
of Illinois,
)
Pollution
Control
Board
)
Complainant,
)
)
vs.
)
PCB No. 96-76
)
CHEMETCO,
INC.
)
)
Respondent.
)
MOTION FOR RELIEF
FROM HEARING
REQUIREMENT
NOW
COMES Complainant,
PEOPLE OF THE
STATE
OF ILLINOIS,
ex rel. LISA MADIGAN,
Attorney
General
of the State of Illinois,
and the
Respondent,
Chemetco, Inc.,
by
LAURA
GRANDY,
Bankruptcy
Trustee
for
the Estate of Chemetco,
Inc., and, pursuant
to
Section
31(c)(2) of the
Illinois
Environmental
Protection Act
(Act’), 415
ILCS
5/31(c) (2)
(2008), moves that the
Illinois Pollution
Control
Board grant
the parties in
the above-captioned
matter relief
from the
hearing
requirement
imposed by
Section
31(c)(1) of the Act,
415 ILCS
5/31(c)(1)
(1998).
In support of this
motion,
the
parties state
as
follows:
1.
The parties
have reached agreement
on
all outstanding
issues in
this matter.
2.
This agreement
is
presented
to the Board in
a
Stipulation
and Proposal
for
Settlement,
filed
contemporaneously
with this
motion.
3.
The
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
ILCS 5/31(c)(2)
(2008).
1
WHEREFORE,
the Complainant, PEOPLE
OF
THE STATE OF ILLINOIS, and the Respondent,
Chemetco Inc
hereby request that
the
Board grant this motion for relief from the hearing
requirementset
forth in Section 31(c)(1) of the Act, 415 ILCS 5/31(c)[1) (1998).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
ATTORNEY GENERAL
MATTHEW
1.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
es L.
Morgan
(/‘
Environmental Bureau
Assistant
Attorney
General
500
South Second Street
Springfield, Illinois 62706
CHEMETCO,
INC,
LAURA
GRANDY
BANKRUPTCY
TRUSTEE
/fl
ini
S.
Livingsto06 196480
Livingston Law Firm
5701 Perrin Road
Fairview Heights, IL
62208
(618)
628-7700
Dated:
2
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
MADISON
COUNTY,
ILLINOIS
PEOPLE
OF THE STATE
OF
ILLINOIS,
Complainant,
vs.
)
No. PCB
96-76
(Enforcement-Land)
CHEMETCO,
INC., a Delaware
corporation,
Respondent.
STIPULATION
AND PROPOSAL
FOR
SETTLEMENT
Complainant, PEOPLE
OF THE
STATE
OF ILLINOIS,
by
LISA
M. MADIGAN,
Attorney
General
ofthe
State
ofIllinois, the Illinois Environmental
Protection
Agency.
(“Illinois EPA”),
Respondent
Chemetco,
Inc.
(“Chemetco”
or “Respondent”),
and the
Bankruptcy Estate of
Chemetco
(the
“Estate”
or
the “Estate
of
Estate”),
have
agreed to the making
of this
Stipulation
and
Proposal
for
Settlement
and submit it
to the
Illinois
Pollution
Control Board (“Board”)
for approval
so that the Complainant’s
claims
for penalties
and
attorneys
fees may
be
fixed for
purposes of
11 U.S.C.
726.
The
Complainant
andChemetco
agree that
the
statement of
additional facts contained
herein represents
a fair summary of
the evidence
and testimony
which
would
be introduced if a
hearing were held. If
the Board approves
and enters
this Stipulation,
Respondent
shall
be bound
by the Stipulation and
shall not
contest its validity
in any
subsequent
proceeding
to
implement
or enforce
its
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. (2002).
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
October
10, 1986,
a Complaint
was
filed
on
behalf
of the
People
of
the
State of Illinois
by
the Attorney
General
of the State
of Illinois pursuant
to Section
42(d)
and
(e)
of the
Act,
415
ILCS
5/42(d)
and
(e) (2002),
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
(2002).
3.
At all
times relevant
to
the
Complaint,
Respondent
was
and
is a
Delaware
corporation
that
is
authorized
to transact
business in
the State
of Illinois. On
November
7,
2001, Respondent
filed
for
Chapter
7
Bankruptcy.
Laura K.
Grandy
was
appointed
as
Bankruptcy
Trustee
for
Respondent’s
Bankruptcy
Estate
by the
Bankruptcy
Court
for
the Southern
District of
Illinois (hereafter
“Trustee”).
B.
Partial
Summary
.Judment
and Adjudication
of Non-Compliance
1.
On
February
19,
1998, the Pollution
Control
Board
issued
an Interim
Opinion
and Order,
attached hereto
as
Appendix
A, which
found
certain facts
to be undisputed
and
that
those
undisputed
facts
established
that Respondent
had
violated
certain provisions
of
the Act and
Board Regulations
as alleged
in
the
State’s Complaint.
The
factual
findings
of the
Interim
Opinion
and Order
are incorporated
herein
by
reference.
2.
In
the
Interim
Opinion
and Order,
the
Pollution
Control Board
found that
Respondent
had
violated:
2
a.
For the
period
between
April
19, 1991,
through
May
1992,35111.
Adm.
Code
725.190(b),
725.192(a), 725.213(b)
(1997)
and
415
ILCS
5/21(0(2)
(1996)
(i.e.,
quarterly
groundwater
sampling
requirements);
b.
For
calendaryear
1991,35111.
Adm.
Code
725.175,
725.194(a)(2)(B),
725.213(b)(1997)
and
415
ILCS
5/21
(f)
(2)
(1996)
(i.e.,
Annual
Report
requirements);
c.
For
the
period
between
April
19,
1981,
through
May
1992,
35
Ill.
Adm.
Code
725.213(1997) and
415
ILCS
5/21
(1)
(2) (1996)
(i.e.,
requirements
to
determine
groundwater
flow
rate
and
direction);
d.
For
the period
since
1986,
35111.
Adm.
Code
725.243(1997)
and
Section
21(0(2)
of
the
Act,
415
ILCS
5/21
(0
(2)
(1996)
(regarding
financial
assurance
for closure);
e.
For
the
period
since
1986,
35
Ill.
Adm.
Code
725.245(1997)
and
Section
21(0
(2) of
the
Act,
415
ILCS
5/21
(f) (2)
(1996)
(regarding
financial
assurance
for
post-closure);
and
f.
For
the period
since
1986,
35
Ill.
Adm.
Code
725.247(a)
and
(b)
(1997)
and
Section
21(0(2)
of the
Act,
415
ILCS
5/21(f)(2)(1996)
(liability
assurance for
bodily
injury
and
property
damage
to third
parties
caused
by
sudden
and
nonsudden
accidental
occurrences
arising
from
operations
of
the
facility).
3.
In
its order,
the
Board
directed
the parties
to
proceed
to
hearing
on
the
issue of
whether
Respondent violated
35 Ill.
Adm.
Code
72
5
.242(a)
by
failing
to
provide
detailed
written
closure
cost
estimates
fully satisfying the requirements
of that
provision.
4.
The
violations
of 35 Ill.
Adm.
Code
725.243,
725.245,
and
72S.247(a)
(1997)
and
Section
21(0
(2) of
the Act,
415
ILCS
5/21(1)
(2) (1996)
were
not
corrected
before
Respondent
ceased
operations
and
filed
for
Chapter
7
bankruptcy.
C.
Additional Violations
1.
On
April
6, 1998,
the
State
amended
its
complaint
to allege
that
a)
Respondent
had
violated
35
Iii.
Adm,
Code
725.242(b)
and
(c),
and 725.244(a)
- (c)
(1997)
and
Section
21(0
(2) of
the
Act,
415
ILCS
5/21(0
(2)
(1996),
by
failing
to
maintain
a
written
estimate,
in
current
dollars,
of
the cost
of
its
hazardous
waste
management
unit
post-closure
plans
or
to
annually
update
its
cost
estimates
for inflation
or for
modification
of its hazardous
3
waste
management
Unit
closure
and
post-closure
plans.
b)
During
the
period
of
1988
until
Respondent
ceased
operations
and
filed
for Chapter
7
bankruptcy,
Respondent
did not
have
a detailed
written
cost
estimates
for
its
hazardous
waste
management unit closure
plans
that
met
the
requirements
of 35
Ill. Adm.
Code
72
5
.242(a)
(1997),
thereby
violating
that
provision
and
Section
21 (f)
(2)
of
the
Act,
415
ILCS
5/21(0(2)
(1996).
c)
During
the
period
of
1988
until
Respondent
ceased
operations
and
filed
for Chapter
7
bankruptcy,
Respondent
did not
annually
update
its cost
estimates
for
its hazardous
waste
management
unit
closure
plans
for
inflation
in
violation
of 35 Ill.
Adm.
Code
725.242(b)
(1997)
and
Section
21(0(2)
of the
Act,
415
ILCS
5/21(0(2)
(1996).
d)
During
the
period
of
1988 until
Respondent
ceased
operations
and
filed
for Chapter
7
bankruptcy,
Respondent
did not
annually
update
its cost
estimates
for
its
hazardous
waste
management
unit
post-closure
plans
for inflation
in violation
of 35 Ill.
Adm.
Code
725.244(b)
(1997)
and
Section
21(0(2)
of
the
Act,
415
ILCS
5/21(0
(2)
(1996).
e)
During
the
period
of 1988
until Respondent
ceased
operations
and filed
for
Chapter
7
bankruptcy,
Respondent
did
not update
its
cost estimates
for
its hazardous
waste
management
unit
closure
plans to
reflect
modifications
of
those
plans
in
violation
of
35 Ill.
Adm. Code
725.242(c)
(1997)
and Section
21(0(2)
of the
Act,
415
ILCS
5/21(0(2)
(1996).
1)
During
the
period
of 1988
until Respondent
ceased
operations
and
filed
for
Chapter
7
bankruptcy,
Respondent
did not
annually
update
its
cost estimates
for
its
hazardous
waste
management
unit post-closure
plans
to
reflect
modifications
of
those plans
in violation
of35
Ill. Adm.
Code
725.244(c)
(1997)
and
Section
21(0(2)
of
the Act,
415
ILCS
5/21(0
(2)
(1996).
g)
During
the
period
of
1988
until
Respondent
ceased
operations
and
filed for
Chapter
7
4
bankruptcy, Respondent
did not
prepare written
cost estimates for
its hazardous
waste
management
unit post-closure
plans
in violation of 35 Ill.
Adm.
Code 725.244(a)
(1997)
and Section
21(f)(2)
of the
Act,
415
ILCS
5/21(0(2)
(1996).
D.
Admission
of Violations
The
Trustee
represents
that she
has entered
into this Stipulation and
Proposal for Settlement
for
the
purpose
of settling
and compromising disputed
claims without
having
to
incur
the expense of
contested
litigation.
The Estate
of
Chemetco and
the Respondent do
not contest
any
of
the findings of violation
entered
by
the
Pollution
Control
Board in
its Interim Opinion and
Order
and agree
they shall
become
final
upon entry of
the Order approving
this
Stipulation
and Proposal for
Settlement.
By entering into
this
Stipulation and Proposal
for Settlement
and
complying
with its terms, the
Estate of
Chemetco
does
not
affirmatively
admit any of the
additional allegations
of violation within
the
original
Complaint
or the First
Amended
Complaint, and this
Stipulation and Proposal
for Settlement
shall not be interpreted
as including
such admission.
IV.
APPLICABILITY
This Stipulation
shall apply
to and
be
binding upon the Complainant,
the Estate,
and
the
Respondent,
and any officer
or
agent
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
or agents 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.
5
VI. IMPACT
ON
THE
PUBLIC
RESULTING
FROM
ALLEGED
NON-COMPLIANCE
Section
33(c)
of
the Act,
415
ILCS
5/33(c)
(2002),
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.
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 hindered
by
the
Respondent’s
violations.
2.
While
the
facility
was
operating,
the
social
and
economic
benefit
attributable
to the
facility
was
seriously
undermined
by
Respondent’s
failure
to
fulfill
its responsibilities
under
the
Act
and
Board
Regulations.
3.
Operation
of the
facility
may
have
adversely
affected
the
area
immediately
adjacent
to the
facility.
4.
Compliance with
the
terms
of the
Act
and
Board
Regulations
violated
by
Respondent
was
both
technically
practicable
and
economically
reasonable.
5.
Respondent
never
complied
with
the
majority
of
the
provisions
of the
Act
and
Board
Regulations it was
found
to
have
violated
and
only
subsequently
complied
with
certain
of
the groundwater
sampling
and
monitoring
requirements
and
liability
assurance
obligations
prior
to
its cessation
of
operations.
6
VII.
CONSIDERATION
OF SECTION
42(h)
FACTORS
Section
42(h)
of
the
Act,
415
ILCS
5/42(h)
(2006)1,
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
violator
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 violator
because
of
delay
in
compliance
with
requirements;
4.
the amount
of monetary
penalty
which
will serve
to deter
further
violations
by the
violator
and
to otherwise
aid in
enhancing
voluntary
compliance
with this
Act
by
the violator
and
other
persons
similarly
subject
to
the
Act; and
5.
the number,
proximity
in time,
and
gravity
of
previously
adjudicated
violations
of
this Act
by
the
violator.
With
regard
to economic
benefit,
Section
42(h)
of the
Act,
415
ILCS
5/42(h)
(2004),
now
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:
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;
In determining
the
appropriate
civil
penalty
to be
imposed
under
* *
*
this Section,
the
Board
shall
ensure,
in
all
cases, that
the
penalty
is at
least
as
great
as the
economic
benefits,
if
any,
accrued
by
the respondent
as
a
result
of the
violation,
unless
the
Board finds
that
imposition
of
such
penalty
would
result
in
arbitrary
or unreasonable
financial
hardship.
* *
The
Board has
elected
not
to
apply
this
revised
provision
in
cases filed
before
its
effective
date
(People
v.
Millenium
Recycling
& Solid
Waste
Consultants,
Inc.,
et
al, PCB
02-77
(February
19, 2004).
While
not
mandatory,
this case
presents
circumstances
where
the
penalty
must
be at least
as great
as
the
economic
benefit
to assure
that the
Respondent
does not
profit
from its
extensive
noncompliance.
7
In response
to
these
factors,
the parties
state as follows:
1.
Respondent
never
complied
with
the majority
of the
provisions
of
the Act
and
Board
Regulations
it was
found to
have
violated
and only subsequently
complied with
certain of
the groundwater
sampling
and
monitoring
requirements
and
liability
assurance
obligations
prior
to
its
cessation
of
operations.
2.
Respondent
was
not diligent
in attempting
to come
back into
compliance
with the Act,
Board
Regulations
and applicable
Federal
regulations,
once the
Illinois
EPA notified
it
of its
noncompliance.
By
refusing
to comply
with
the
closure
and post-closure
financial
assurance
requirements,
Respondent
left
unfunded
closure
and
post-closure
obligations
it
had
previously
estimated
in
1991 would
cost
at least
$7,400,000.00
and
$1,800,000,
respectively.
While Respondent
prepared
subsequent
closure/post-closure
plans
that had
lower cost
estimates,
it
did
not
address
Illinois
EPA
comments
or modifications
and
never
obtained
final
approval by
Illinois EPA.
3.
Respondent
realized
a
significant
economic
benefit
from
its noncompliance.
a.
Respondent
avoided
costs
in excess of
$90,000
by
evading
its
groundwater
sampling
and
monitoring
obligations
from
April
19, 1991 through
May,
1992.
b.
By
refusing
to comply
with
the
closure
and post-closure
financial
assurance
requirements,
Respondent
avoided
significant
annual expenses.
Based
upon
its approved
1988 and
1991
closure and
post-closure
costs
estimate
of approximately
$4,000,000.00
and
$6,000,000.00,
Respondent
avoided
annual
costs
of
$80,000
to
$120,000
(based
on
the cost
of
obtaining
a
letter
of
credit
of
2%
of the
amount
of credit
to
cover the balance
between
the
amount
in
its
Closure Trust
Fund
and the
estimated
closure
costs) during
the period
of
1986
to
November
1, 2002
)a minimum
economic
benefit
of
$1,600,000.
c.
By
refusing
to comply
with the liability
assurance
requirements,
Respondent
avoided
costs
in excess
of
$261,000.00.
The total
economic
benefit would
be
about
$1,951,000.00.
Imposing
a
penalty at
least
as
great
as the
8
economic
benefit
would
not
be
an arbitrary
or unreasonable
hardship
because, pursuant
to
11
U.S.C.
726(a)
(4),
the only
priority
for
payments
from
liquidation
of the
bankruptcy
estate
lower
than
that
for such
penalty
claims
would
be
payments
to
the
Respondent
itself
and
that
the Respondent
is
not
expected
to
be
recommencing
operations. The
Bankruptcy Trustee
has
expended
well
in
excess
of
$2
Million
involving
environmental
issues
at
the
facility
since
the
filing
of
bankruptcy.
4.
A joint
federal/State
enforcement
action
seeking
additional
relief,
including
cleanup
of the
facility
is
currently
pending
in
federal
court.
The
governments
and
the
Estate
are
engaged
in
negotiations
to
resolve
that
case
and facilitate
restoration
of the
site.
In the
event
these
efforts
are
unsuccessful
and
the
Bankruptcy
Court
approves
abandonment
of the
Facility
by
the Trustee, the
property
would
revert
to
the
Respondent
as
though
the
bankruptcy
petition
were
never
filed.
5.
Pursuant
to a
Consent
Order
enteredJune
30, 1988,
in
the
case of
People
v.
Chemetco,
Inc.,
88-CH-200, Respondent
paid
a
civil
penalty
of
$80,000
to resolve
violations
of
the Act
and Air
Pollution
and
Hazardous
Waste
regulations.
In subsequent
proceedings
under
that
order,
Respondent
paid additional
penalties
of
$50,000.00
and
$175,000.00.
Respondent
pled
guilty
and
was
convicted
of
criminal
violations
of
the
Clean
Water
Act.
See
United
States
v. Chemetco,
Inc.,
274
F.3d
1154.
A penalty
of
$4,500,000
was
imposed
in
that
case.
VIII.
TERMS
OF
SETTLEMENT
A.
Penalty
Payment
1.
A
penalty
in the
sum
of Two
Million
Dollars
($2,000,000.00)
shall
be
imposed
upon
the
Respondent.
The
time
and manner
of payment
of this
penalty
shall
be determined
in
Respondent’s
Bankruptcy proceeding
where
it
shall be
treated
as
an unsecured
claim
pursuant
to
11
U.S.C.
726 (a)
(4).
When
paid,
the
penalty
shall
be paid
by
United
States
Trustee
check(s)
payable
to
the
Illinois
EPA,
designated
to
the
Illinois
Environmental
Protection
Trust
Fund
and
submitted
to:
Illinois
Environmental
Protection
Agency
Fiscal
Services
Section
9
1021
North
Grand
Avenue
East
P.O. Box
19276
Springfield,
IL
62794-9276
The
name
and
number
of the
case
shall
appear
on
the check.
A copy
of
the United
States
Trustee
check
and
the
transmittal
letter
shall be
sent
to:
James
L.
Morgan
Assistant
Attorney
General
Attorney
General’s
Office
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
B.
Future
Use
Notwithstanding
any
other
language
in
this
Stipulation
to
the
contrary,
this Stipulation
may be
used
against
the Respondent
and any
officer
or
agent
of
the
Respondent
in
any
subsequent
enforcement
action
as
evidence
of
a
past adjudication
ofviolation
of the
Act
and
the
Board
Regulations
promulgated
thereunder,
for
purposes
of
Section
39(i)
and/or
42(h)
of
the
Act,
415
ILCS
5/39(i)
and/or
5/42(h)
(2002).
C.
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.
D.
Cease
and
Desist
To
the
extent
possible
given
that
this
matter
is affected
by
the filing
of
Bankruptcy,
the
Respondent
shall
cease
and
desist
from
future
violations
of
the Act
and
Board
Regulations,
including
but
not
limited
to
those
sections
of
the
Act
and
Board
Regulations
that were
the
subject
matter
of the
Complaint
as
outlined
in
Section
III.C.
of
this
Stipulation.
However,
no
affirmative
duty
exists
to
require
the Trustee
to fund
the
10
closure
requirements
or to cure
any
of the additional
violations set forth
in
Section III
of this
Stipulation.
E.
Reservation
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
violation
of
state, federal, local,
and common laws
and/or
regulations
occurring
after November
7,
2001;
c.
liability
for releases
or threatened
releases of hazardous
substances
at or from
the
facility;
d.
liability
for natural
resources damage
arising out of the alleged
violations
or from
releases
or
threatened
releases
of
hazardous substances at
or from
the facility;
and
e.
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
3.26 of
the
Act,
415
ILCS
5/3.26,
or entity
other than the Estate
of Respondent.
F.
Enforcement
of
Stipulation
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
Pollution
Control
Board
and may
be enforced
as such through
any
and all
available
means.
2.
Notice of
any
subsequent proceeding
to enforce
the Board Order
approving
and
accepting
this
Stipulation
and
Proposal
for
Settlement
may be made
by mail.
3.
If the Board does
not approve
and accept
this Stipulation
and Proposal
for
Settlement,
then
neither
party is bound
by the terms
herein.
11
4.
It is
the intent of
the Complainant,
the Respondent,
and the
Estate
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.
WITEREFORE,
Complainant,
the Respondent,
and
the Estate
of
Chemetco 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:
‘4
THOMAS
DAVIS,
Chief
Environmental
Bureau
Assistant
Attorney
General
ILLINOIS
ENONMENTAL
PQTECTION
AGENCY
BY:
l/(fff
1
4.
ftf
4
DATE:_______
ROERT
A.
MESSINA
t
Chief
Legal Counsel
RESPONDENT
CHEMETCO,
INC.
BY:
DATE:
LAURA
K.
GRANDY
Trustee,
Bankruptcy
Estate of Chemetco,
Inc.
12
4.
It
is
the intent
of the Complainant, the Respondent,
and the Estate 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.
WHEREFORE, Complainant, the Respondent,
and
the
Estate
of Chemetco 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
MKLJ’HEW
J.
DUNN, Chief
Environmental
Enforcement!
Asbestos
Litigation
Division
BY:
DATE:
THOMAS DAVIS, Chief
Environmental
Bureau
Assistant
Attorney
General
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY:
DATE:
ROBERT A. MESSINA
Chief Legal Counsel
RESPONDENT
CHEMETCO,
INC.
BY:
DATE:
L&)k
K. GRAN
Trustee,
Bankruptcy
Estate of Chemetco, Inc.
12