BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
GOLDEN
BAG COMPANY,
)
an Illinois corporation,
)
)
Respondent.
)
PCB No.
06-144
(Enforcement - Air)
NOTICE OF FILING
To:
Charles
T.
Wehland
Jones Day
77 W. Wacker Drive
Chicago,
Illinois 60601-1692
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control
Board of the State of Illinois, a MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of which
are attached hereto and herewith served upon you.
69 W. Washington
St., Suite 1800
Chicago, Illinois 60602
312/814-3532
Dated: August
21,2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
A.J.;?g~
:.IJAJ
L. NICHOLE CUNNI GHAM '
7'
v
Assistant Attorney General
Environmental Bureau
Electronic Filing - Received, Clerk's Office, August 21, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
GOLDEN BAG COMPANY,
)
an
Illinois corporation,
)
)
Respondent.
)
PCB No.
06-144
(Enforcement - Air)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31 (c)(2) of the
Illinois Environmental Protection Act ("Act"), 4151LCS 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,
4151LCS 5/31 (c)(1) (2008). In support of
this motion, Complainant states 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.
All 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, 4151LCS 5/31 (c)(2) (2008).
1
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(1) of the Act, 4151LCS 5/31 (c)(1) (2008).
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
217/782-9031
Dated: August 21,2009
2
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
A TIORNEY GENERAL
MATTHEW
J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY
~~,\~
.LIt)
L.
NICHOLE cuNNIHAfIi '7 ....
Environmental Bureau
Assistant Attorney
General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, by
)
LISA MADIGAN, Attorney General of the State )
of Illinois,
)
)
Complainant,
)
)
)
v.
)
)
)
GOLDEN BAG COMPANY, an Illinois
)
corporation,
)
)
Respondent.
)
PCB 06-144
(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
GOLDEN BAG COMPANY, an Illinois corporation ("Respondent"), ("Parties to the
Stipulation"), 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 511
et seq.
(2006), and the Board's
Regulations, alleged in the Complaint except as otherwise provided herein.
It
is the intent of the
Parties to the Stipulation that it be a final adjudication of this matter.
I.
STATEMENT OF FACTS
____________________________________________ _
A.
Parties
1.
On March 10, 2006, a Complaint was filed on behalf of the People of the State of
Illinois by Lisa Madigan, Attorney General ofthe State of Illinois, on her own motion and upon the
request
of the Illinois EPA, pursuant to Section 31 of the Act, 415 ILCS
5/31
(2006), against the
Respondent.
2.
The Illinois EPA is an administrative agency ofthe 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 and that owned and
operated a plastic bag manufacturing facility, located at
290 Illinois Street, Dundee, Kane County,
Illinois
("site" or "facility").
4.
From 1999 to the present, Golden Bag Company has operated extruders and
flexographic printing presses at the facility. The presses and extruders are emissions sources
of
volatile organic materials ("YOM").
B.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the Act
and Board regulations:
Count I:
Count II:
Causing,
Threatening or Allowing Air Pollution, in violation of
Section 9(a) of the Act, 415 ILCS
5/9(a)
(2006), and 35 III. Adm. Code
201.141.
Failure to Obtain Construction Permit, in violation of Section 9(b) of
the Act, 415 ILCS
5/9(b)
(2006), and 35 Ill. Adm. Code 201.142.
Count III:
Count IV:
Count V:
Count VI:
Count VII:
Count VIII:
Failure to Obtain Operating Permit, in violation of Section 9(b) of the
Act, 415
ILCS 5/9(b) (2006), and 35 III. Adm. Code 201.143.
Operating a Major Source Without a CAAPP Permit, in violation of
Section 39.5(6)(b) of the Act, 415 ILCS 5/39.5(6)(b) (2006).
Failure to Comply with New Source Review Requirements, in
violation
of Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and 35 III.
Adm. Code
203.201.
Failure to Submit Complete and Accurate Annual Emissions Reports,
in violation
of Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and 35
III.
Adm. Code 201.302(a), 254.132(a) and 254.137(a).
Failure to Demonstrate Compliance with Standards and
Requirements for Flexographic Printing Operations, in violation of
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and 35 III. Adm. Code
218.401(a)
and (c).
Failure to Comply with the Board's Requirements to Certify
Compliance
and to Collect Records, in violation of Section 9(a) of the
Act, 415
ILCS 5/9(a) (2006), and 35 III. Adm. Code 218.404.
C.
Non-Admission of Violations
The Respondent neither admits nor denies the violations alleged in the Complaint filed in
this matter and referenced herein.
D.
Compliance Activities to Date
1.
On or around January 27, 2004, Golden Bag submitted an initial application for an
operating permit to the Illinois
EPA, and thereafter submitted supplemental information related to
the permit application.
On or around March 6, 2004, Golden Bag submitted an application for a
Federally Enforceable State Operating Permit ("FESOP") to the Illinois EPA on Clean Air Act
Permit Program ("CAAPP)" permit application forms. On or around March 17,2009, Golden Bag
provided the Illinois
EPA with information required to complete its application for a FESOP.
3
2.
In June 2006, Golden Bag submitted to the Illinois EPA Annual Emission Reports
("AERs") for years 2003 and 2004. On May 1,2006, Golden Bag submitted an AER to the Illinois
EP A for 2005; Respondent has submitted AERs to the Illinois EPA by May 1 sl each year since
May
2006 through the date of filing of this Consent Order.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Parties to the Stipulation, 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.
This Stipulation may be used against the Respondent in any subsequent enforcement action or
permit proceeding as
proof of a past adjudication of violation of the Act and the Board Regulations
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).
No change in ownership, corporate status or operator of the facility shall in any way alter
the responsibilities
of the Respondent under this Stipulation. In the event that the Respondent
proposes to sell or transfer any real property or operations subject to this Stipulation, the
Respondent shall notify the Complainant thirty
(30) calendar days prior to the conveyance of title,
ownership or other interest, including a leasehold interest in the facility or a portion thereof. The
Respondent shall make as a condition
of any such sale or transfer, that the purchaser or successor
provide to Respondent site access and all cooperation necessary for Respondent to perform to
completion any compliance obligation(s) required by this Stipulation. The Respondent shall
provide a copy
of this Stipulation to any such successor in interest and the Respondent shall
4
continue to be bound by and remain liable for performance of all obligations under this Stipulation.
In appropriate circumstances, however, the Respondent and a proposed purchaser or operator of
the facility may jointly request, and the Complainant, in its discretion, may consider modification
of this Stipulation to obligate the proposed purchaser or operator to carry out future requirements
of this Stipulation in place of, or in addition to, the Respondent. This provision does not relieve the
Respondent from compliance with any regulatory requirement regarding notice and transfer
of
applicable facility permits.
III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) ofthe 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.
In response to these factors, the Complainant states 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.
There is social and economic benefit to the facility.
5
3.
Operation of the facility was suitable for the area in which it occurred.
4.
The compliance requirements for Respondent are both technically practicable and
economically reasonable. Specifically, Respondent was and is able to obtain permits prior to the
construction and operation
of emission sources at the facility, to comply with the terms of such
permits, and to comply with all recordkeeping and reporting requirements in the Act and Board
Regulati ons.
5.
Respondent has taken steps to comply with the Act and the Board Regulations.
Specifically, Respondent will supplement its application for an operating permit and is currently
complying with all applicable recordkeeping and reporting requirements in the Act and Board
Regulations.
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 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;
6
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 Complainant states as follows:
1.
Respondent's facility emitted YOM into the atmosphere in an area designated as
severe nonattainment for ozone at the time
of the alleged violations. In 1999, Golden Bag
constructed and began to operate YOM emission sources at its facility without obtaining
construction and operating permits from the Illinois
EPA. Golden Bag submitted its first
application for an operating permit in January 2004; from 1999 to the present, Golden Bag has
continued to operate its facility in Illinois without the requisite permit from the Illinois EPA.
Respondent is unable to produce any emissions records for calendar year 1999 and failed to
comply with annual emissions reporting requirements until June 2006.
2.
Respondent was reasonably diligent in attempting to come back into compliance
with the Act and Board regulations after the Illinois
EPA notified it of its noncompliance.
3.
The economic benefit of non-compliance to Golden Bag is $3,200.00, representing
avoided operating permit fees from 1999 through
2009.
4.
Complainant has determined, taking into consideration Golden Bag's financial
ability, that a penalty of Twenty Thousand Dollars ($20,000.00) will serve to deter further
violations and aid in future voluntary compliance with the Act and Board Regulations.
7
5.
To Complainant's knowledge, Respondent has no previously adjudicated
violations
of the Act.
6.
Self-disclosure is not at 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 Twenty Thousand Dollars
($20,000.00), Three Thousand Two Hundred Dollars ($3,200.00) of which represents avoided
operating permit fees which amount has already been tendered to the Illinois EPA Permit and
Inspection Fund.
Sixteen Thousand Eight Hundred Dollars ($16,800.00) shall be paid within
thirty (30) days from the date the Board adopts and accepts this Stipulation. The Sixteen Thousand
Eight Hundred Dollars
($16,800.00) shall be paid as directed in section V.C herein.
B.
Stipulated Penalties, Interest and Default
1.
If the Respondent fails to complete any activity or fails to comply with any
response or reporting requirement by the date specified in this Stipulation, the Respondent shall
provide notice to the Complainant of each failure to comply with this Stipulation and shall pay
stipulated penalties in the amount of $150.00 per day until such time that compliance is achieved.
The Complainant may make a demand for stipulated penalties upon the Respondent for its
noncompliance with this Stipulation. However, failure by the Complainant to make this demand
shall not relieve the Respondent of the obligation to pay stipulated penalties. All stipulated
penalties shall be payable within thirty
(30) calendar days of the date the Respondent knows or
should have known
of its noncompliance with any provision of this Stipulation.
8
2.
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.
3.
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
1.
All payments required by this Stipulation shall be made by certified check or
money order payable to the Illinois
EPA. One payment of $16,800.00 shall be directed for deposit
into the Environmental
Protection Trust Fund ("EPTF).
2.
Payment shall be sent by first class mail and delivered to:
Illinois Environmental
Protection Agency
Fiscal Services
1
021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
3.
The name, case number and the Respondent's federal tax identification number
shall 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:
9
L. Nichole Cunningham
Assistant Attorney General
Environmental Bureau
69 W. Washington St., Suite
1800
Chicago, Illinois 60602
D.
Future Compliance
1.
Respondent shall timely respond to any Illinois EPA requests for additional
information necessary to determine the completeness
of Respondent's application or for issuance
of a permit in accordance with any time frame contained in any Illinois EPA request(s). Upon
issuance of a FESOP, Respondent shall comply with the terms and conditions of the FESOP.
2.
Respondent may continue to operate the facility in compliance with the Act and
Board regulations prior to the issuance of a FESOP.
3.
Respondent shall timely obtain all necessary construction permits for future
equipment additions and/or replacements.
4.
Respondent shall timely submit to the Illinois EPA all AERs.
5.
Respondent shall at all times operate its facility in compliance with the Act and
applicable Board Regulations.
6.
In
addition to any other authorities, 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's facility which is the subject of this 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.
10
7.
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.
8.
The Respondent shall cease and desist from future violations of the Act and Board
Regulations that were the subject matter
of the Complaint.
E.
Release from Liability
In consideration
of the Respondent's payment of the $20,000.00 penalty, its commitment
to cease and desist as contained in Section V.D. above, completion
of all activities required
hereunder, and upon the Board's approval
of this Stipulation, 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 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
10, 2006. 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 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
11
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.
Correspondence, Reports and
Other Documents
Any and all correspondence, reports and any other documents required under this
Stipulation, except for penalty payments, shall be submitted as follows:
As to Complainant
L.
Nichole Cunningham
Assistant Attorney General
Environmental Bureau
69
W. Washington St., Suite 1800
Chicago, Illinois 60602
Maureen Wozniak
Assistant Counsel
Illinois Environmental
Protection Agency
1
021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
As to Respondent
Charles
T. Wehland
Jones Day
77 West Wacker
Chicago, Illinois
60601-1692
12
...
,
'
~
G.
Enforcement and Modification of Stipulation
1.
Upon the entry of the Board's Order approving and accepting this Stipulation, the
Order is a binding and enforceable order of the Board and may be enforced as such through any
and all available means.
2.
The Parties to the Stipulation may, by mutual written consent, agree to extend any
compliance dates or modify the terms
of this Stipulation. A request for any modification shall be
made in writing and submitted to the contact persons identified in Section V.I. Any such request
shall be made by separate document, and shall not be submitted within any other report or
submittal required by this Stipulation. Any such agreed modification shall be in writing, signed by
authorized representatives
of the Parties to the Stipulation.
H.
Execution
of Stipulation
The undersigned representatives for the
Parties to the 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.
13
WHEREFORE, the Parties to the 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:
_______ _
GOLDEN BAG COMPANY
BY:
N
.=-_______ _
Title~Q
s;
d w.:t
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS
P. SCOTT, Director
Illinois Environmental Protection Agency
BY: _____________ _
JOHN J.KIM
Chief Legal Counsel
DATE:
____________ __
14
WHEREFORE, the Parties to the 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
1. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
GOLDEN BAG COMPANY
BY:
Name:
-----------------
Title:
----------------
THE ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
DA TE:
-~1.0£...4-'
<$--=--+-( 0-'--'1-'---_
14
CERTIFICATE OF SERVICE
I
hereby certify that I did on August 21, 2009, send by First Class Mail, with postage
thereon
fully prepaid, by depositing in a United States Post Office Box a true and correct copy of
the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETILEMENT:
To:
Charles
T.
Wehland
Jones Day
77 West Wacker
Chicago,
Illinois 60601-1692
and the same foregoing instrument(s) sent electronically:
To:
John
T.
Therrault, Assistant Clerk
Illinois Pollution Control
Board
James
R.
Thompson Center
Suite
11-500
100
West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street, 11 th Floor
Chicago, IL 60601
L~
l~~
NICHOLE CUNNINGHAM '/
IJ/J
J
Assistant Attorney General
~
This filing is submitted on recycled paper.
