BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

by LISA MADIGAN, Attorney General

)

of the State of Illinois,

)

)

Complainant,

)

)

v.

)

)

PCB No. 07-124

KRAIT FOODS GLOBAL, INC., a

(Enforcement - Water)

)

Delaware corporation,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on the 18th day of November, 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.

DATE: November 18, 2009

PEOPLE

OF THE STATE OF ILLINOIS

by LISA MADIGAN

Attorney General

of the State of Illinois

BY_{~4:~---

.

Assistant

AttC~:~eneral

Environmental Bureau North

69 W. Washington St., Suite 1800

Chicago, Illinois 60602

(312) 814-2087

~~ylvt"~ter@(l

tg.~tate.

il.lIs

THIS FILING IS SUBMITTED ON RECYCLED PAPER

Electronic Filing, Received, Clerk's Office, November 18, 2009

---

Andrew H. Perellis, Esq.

Elizabeth Leifel Ash, Esq.

Seyfarth Shaw

LLP

131 S. Dearborn St., Suite 2400

Chicago,

IL 60603

Katherine

P. O'Halleran, Esq.

Senior Counsel, Environmental

&

Safety

Kraft Foods Global, Inc.

Three Lakes Drive

Northfield, Illinois 60093

Mr. Bradley

P. Halloran

Hearing Officer

Illinois Pollution

Control Board

SERVICE LIST

James R. Thompson Center, Suite 11-500

Chicago, Illinois 60601

Electronic Filing, Received, Clerk's Office, November 18, 2009

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

by LISA

MADIGAN, Attorney General

of the State of Illinois,

Complainant,

v.

KRAFT FOODS GLOBAL, INC., a

Delaware corporation,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

)

PCB No. 07-124

(Enforcement -

Water)

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 relieffrom the hearing

requirement in the above-captioned matter as to Respondent, KRAFT FOODS GLOBAL, INC., a

Delaware corporation.

In support thereof, the Complainant states as follows:

1.

On June 5, 2007, a Complaint was filed with the Illinois Pollution Control Board

("Board") in this matter.

On November 18, 2009, a Stipulation and Proposal for Settlement was

filed with

the Board in this matter.

2.

Section 31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS

5/31(c)(2) (2008), 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.

3.

Section 31(c)(2)

of the Act, 415 5/31(c)(2) (2008), 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 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

Electronic Filing, Received, Clerk's Office, November 18, 2009

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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).

4.

No hearing is currently scheduled in the instant case.

5.

The Complainant requests the relief conferred by Section 31 (c)(2) of the Act, 415

ILCS 5/31(c)(2) (2008).

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) (2008).

Respectfully su bmitted,

PEOPLE

OF THE STATE OF ILLINOIS

by LISA

MADIGAN

Attorney General of the State of Illinois

BY'_-!~~~~

Assistant Attorney General

Environmental Bureau

North

69 W. Washington St., Suite 1800

Chicago, Illinois 60602

(312) 814-2087

ssylvester@atg.state.i1.us

Electronic Filing, Received, Clerk's Office, November 18, 2009

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS

)

by LISA MADIGAN,

Attorney General

)

of the State of Illinois,

)

)

Complainant,

)

)

v.

)

)

KRAFT FOODS GLOBAL, INC., a

)

Delaware corporation,

)

)

Respondent.

)

PCB No. 07-124

(Enforcement - Water)

STIPULATION AND PROPOSAL FOR SETILEMENT

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

Kraft Foods Global, Inc. ("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

5/1 et

seq.

(2008), 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 June 5, 2007, a Complaint was filed on behalf of the People of the State of

1

Electronic Filing, Received, Clerk's Office, November 18, 2009

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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 5/31 (2008), 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 (2008).

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.

4.

At all times relevant to the Complaint, Respondent owned and operated a food

processing and production facility ("Facility"), located at 1555 West Ogden Avenue, Naperville,

DuPage County, Illinois ("Site").

B.

Allegations of Non-Compliance

Complainant alleges

that the Respondent has violated the following provisions of the Act

and Board Water Pollution Regulations:

Count I:

Count II:

Count III:

Count IV:

WATER POLLUTION: in violation of Section 12(a) of the Act,

415 ILCS 5/12(a);

VIOLATION

OF THE GENERAL USE WATER QUALITY

STANDARDS: in violation

of Section 12(a) of the Act, 415 ILCS

5/12(a), and Sections 302.203, 304.105, and 304.106 the Board

Water Pollution regulations, 35 Ill. Adm. Code 302.203, 304.105,

and 304.106;

WATER POLLUTION HAZARD: in violation

of Section 12(d) of

the Act, 415 ILCS 5/12(d);

DISCHARGING

TO WATERS OF THE STATE WITHOUT AN

NPDES PERMIT: in violation

of Section 12(f) of the Act, 415 ILCS

5/12(f), and Section 309.102(a)

of the Board Water Pollution

Regulations, 35 Ill. Adm. Code 309.1 02(a);

2

Electronic Filing, Received, Clerk's Office, November 18, 2009

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Count V:

Count VI:

SYSTEMS RELIABILITI VIOLATIONS: FAILURE TO

PREVENT MALFUNCTIONS: in violation of Section 12(a) of the

Act, 415 ILCS 5/12(a), and Section 306.102(a)

of the Board Water

Pollution Regulations, 35

IlL Adm. Code 306.102(a);

SYSTEMS RELIABILITI VIOLATIONS: FAILURE

TO

PREVENT SPILLAGE OF CONTAMINANTS: in violation of

Section 12(a) of the Act, 415 ILCS 5/12(a), and Section 306.102(b)

of the Board Water Pollution Regulations, 35 Ill. Adm. Code

306.102(b);

Count VII:

VIOLATION OF EFFLUENT LIMITATIONS: in violation of

Section 12(")

of the Act, 415 ILCS 5/12(a), and Section 304. 120(a)

of the Board Water Pollution Regulations, 35 IlL Adm. Code

304 . 120(a) .

Additionally, Complainant

alleges that Respondent has violated the following provisions of

the Act and Board Water Pollution Regulations, as Respondent reported to the Illinois EPA

during a July

31,2008 Illinois EPA inspection of the Facility in regard to a spill at the Site, which

occurred

on May 5,2007:

Violation I:

WATER POLLUTION: in violation of Section 12(a) of the Act,

415 ILCS 5/12(a);

Violation

II: WATER POLLUTION HAZARD: in violation of Section 12(d) of

the Act, 415 ILCS 5/12(d);

Violation III: DISCHARGING

TO WATERS OF THE STATE WITHOUT AN

NPDES PERMIT: in violation

of Section 12(f) of the Act, 415 ILCS

5/12(f), and Section 309.102(a)

of the Board Water Pollution

Regulations, 35

IlL Adm. Code 309.102(a);

c.

Non-Admission of Violations

The Respondent represents that it has entered into this Stipulation for the purpose

of

settling and compromising disputed claims without having to incur the expense of contested

litigation.

By entering into this Stipulation and complying with its terms, the Respondent does

not affirmatively admit the allegations of violation within the Complaint and referenced within

3

Electronic Filing, Received, Clerk's Office, November 18, 2009

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Section I.B herein, and this Stipulation shall not be interpreted as including such admission.

II. APPLICABILITY

This Stipulation shall apply to and be binding upon the Parties to the Stipulation. The

Respondent shall not raise as a defense to any enforcement action taken pursuant to this

Stipulation the failure of any 6f 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 (2008).

III.

IMPACT

ON THE PUBLIC RESULTING FROM ALLEGED NON.COMPLIANCE

Section 33(c) of the Act, 415 ILCS 5/33(c)(2008), 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

Electronic Filing, Received, Clerk's Office, November 18, 2009

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In response to these factors, the Parties to the Stipulation state the following:

1.

Respondent's discharges of untreated wastewater into the West Branch of the

DuPage River via a storm sewer threatened the environment.

2.

Respondent's Facility has social and economic benefit.

3.

Respondent's operation of the Facility was suitable for the area in which it

occurred.

4.

Upgrading its wastewater

treatment lines at Respondent's Facility to prevent spills

and unpermitted discharges is both technically practicable and economically reasonable.

5.

Respondent has subsequently complied with the Act and the Board Water

Pollution Regulations by upgrading its wastewater treatment lines.

IV. CONSIDERATION OF SECTION 42(h) FACfORS

Section 42(h) of the Act, 415 ILCS 5/42(h)(2008), 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;

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Electronic Filing, Received, Clerk's Office, November 18, 2009

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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 the Stipulation state as follows:

1.

The Respondent's discharges of untreated wastewater into the West Branch of the

DuPage River via a storm sewer threatened

the environment. The alleged violations set forth in

the Complaint occurred on three separate occasions: 1) on or about June 6, 2005; 2) on or about

June 23, 2005; and 3) on or about October 13, 2005.

An

additional violation occurred on or

about May 5,2007, also involving Respondent's potential discharge of untreated wastewater into

the West Branch of the DuPage River via a storm sewer.

2.

Once the Illinois EPA notified it of its noncompliance, Respondent Facility agreed

to upgrade its wastewater treatment lines.

3.

The civil penalty includes any economic benefit that Respondent may have accrued

as a result of the delay in compliance.

4.

Complainant has determined, based upon the specific facts of this matter, that a

penalty

of Eighty-Four Thousand Five Hundred Seventy Dollars ($84,570.00) will serve to deter

violations and aid in future voluntary compliance with the Act and Board Water Pollution

Regulations.

5.

To Complainant's knowledge, Respondent has no previously adjudicated violations

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Electronic Filing, Received, Clerk's Office, November 18, 2009

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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 SETILEMENT

A.

Penalty Payment

1.

The Respondent shall pay a civil penalty in the sum of Eighty Four Thousand Five

Hundred Seventy Dollars ($84,570.00) 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.

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

7

Electronic Filing, Received, Clerk's Office, November 18, 2009

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payable to the lllinois EPA for deposit into the Environmental Protection Trust Fund ("EPTF").

Payments shall be sent by first class mail

and delivered to:

lllinois Environmental Protection Agency

Fiscal Services

1021

North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

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:

Stephen

J. Sylvester

Environmental Bureau

lllinois Attorney General's Office

69 West Washington Street, Suite 1800

Chicago, lllinois 60602

D.

Future Compliance

1.

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 lllinois EPA, its employees

and representatives, and the Attorney

General,

her employees and representatives, may take photographs, samples, and collect

information,

as they deem necessary.

2.

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

Electronic Filing, Received, Clerk's Office, November 18, 2009

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3.

The Respondent shall cease and desist from future violations of the Act and Board

Water Pollution Regulations that were the subject matter of the Complaint.

E.

Release

from Liability

In consideration of the Respondent's payment of the $84,570.00 penalty, 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 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 June 5, 2007 and that

were reported to the Illinois EPA during a July 31, 2008 inspection of the Facility in regard to a

spill at

the Site, which occurred on May 5, 2007 and that are described in Section I.B, above. 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 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

9

Electronic Filing, Received, Clerk's Office, November 18, 2009

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l~w

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 and Modification 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 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.

10

Electronic Filing, Received, Clerk's Office, November 18, 2009

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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

~~;'-L.Jo-~'--

Environmental Bureau

Assistant Attorney General

THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENGY,

DOUGlAS P. SCO'IT, Director

Illinois Environmental Protection Agency

11

Electronic Filing, Received, Clerk's Office, November 18, 2009

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..

CERTIFICATE OF SERVICE

I, STEPHEN]. SYLVESTER, an Assistant Attorney General in this case, do certify that

I

caused to be served this 18th day of November, 2009, the foregoing Stipulation and Proposal for

Settlement,

Motion to Request Relief from Hearing Requirement and Notice of Filing upon the

persons listed

on the Service List by depositing same in an envelope, first class postage prepaid,

with the

United States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before

the

hour of 5:00 p.rp.

.

Electronic Filing, Received, Clerk's Office, November 18, 2009