BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
1
PCB NO. 07-001
v.
)
(Enforcement
-
Water)
)
KURT CARLSON,
)
)
Respondent.
)
NOTICE OF FILING
TO: Thomas 0. Meyer
Meyer
&
Horning
3400 North
Rockton Avenue
Rockford, Illinois 61103
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board by
electronic filing the Stipulation and Proposal for Settlement,
and Motion to Request Relief from Hearing Requirement, true and
correct copies which are attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
.~nvironm&tal Bureau
188 W. Randolph St.,
2oth Floor
Chicago, Illinois 60601
(312) 814-5361
DATE
:
November 20, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
1
PCB NO. 07-001
v.
)
(Enforcement
-
Water)
)
KURT CARLSON,
)
)
Respondent.
1
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 Respondent
KURT
CARLSON ("Respondent") have agreed to the making of this
Stipulation and Proposal for Settlement ("Stipulation") and
submit it to the Illinois Pollution Control Board
("BoardN) for
approval. The parties agree that the statement of facts
contained herein represents a fair summary of the evidence and
testimony which would be introduced by the parties if a hearing
were held. The parties further stipulate that this statement of
facts is made and agreed upon for purposes of settlement only and
that neither the fact that a party has entered into this
Stipulation, nor any of the facts stipulated herein, shall be
introduced into evidence in any other proceeding regarding the
claims asserted in the
complaint except as otherwise provided
herein. If the Board approves and enters this Stipulation,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
Respondent agrees to be bound by the Stipulation and Board Order
and not to contest their validity in any subsequent proceeding to
implement or enforce their 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.
(2004).
11. 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.
111. STATEMENT OF FACTS
A.
Parties
1. On July 3, 2006, 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
42(d) and (e) of the
Act, 415 ILCS 5/42
(d) and (e)
,
(as amended byP.A. 93-831 (eff.
July 28, 2004)
),
against the Respondent Kurt Carlson.
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
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 (2004)
.
3. At all times relevant to the Complaint, Respondent
-
was and is an Illinois resident.
B. Site Description
1. At all times relevant to the Complaint, Respondent
owned and developed the residential subdivision known as Park
Valley. Park Valley is comprised of 62 residential lots that are
situated on approximately 22 acres located along
McFarland Road
in the City of Loves Park, Winnebago County, Illinois ("Site").
2. On May 29, 2003, the Illinois EPA issued a General
National Pollutant Discharge
~limination System Permit for Storm
Water Discharges from Construction Site Activities ("General
NPDES Storm Water Permit") to Respondent to discharge storm water
for construction activities and related earthwork within an area
of the Site identified as Plat 2 (Permit Number ILRlO
B900).
3. On December 1, 2004, a second General NPDES Storm Water
Permit (Permit Number ILRlO 8389) was issued to Respondent to
discharge storm water for construction activities and related
earthwork for a portion of the Site identified as Plat 1, not
covered under
Respondent's previously issued General NPDES Storm
Water Permit Number ILRlO
B900:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
C. Allegations of on-~om~iiance
Complainant contends that the Respondent has violated the
following provisions of the Act and
~oard regulations:
Count I
:
Causing, threatening or allowing the discharge of
a contaminant into the environment so as to cause
water pollution, in violation of Section 12 (a) of
the Act, 415 ILCS 5/12 (a) (2004)
;
Count 11:
Failing to comply with Respondent's General NPDES
Storm Water Permits in violation of Section 12
(f)
of the Act, 415 ILCS 5/12 (f) (2004)
;
and
Count 111:'
Improperly depositing contaminants on the land so
as to create a water pollution hazard, in
violation of Section
12(d) of the Act, 415 ILCS
5/12 (d) (2004)
.
D. Admission of Violations
The Respondent represents that he 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 Section
1II.C herein, and this Stipulation shall not be
interpreted as including such admission.
E. Compliance Activities to Date
As of the date of filing of this Stipulation, Respondent is
in compliance with his General NPDES Storm Water Permits, Numbers
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
ILRlO B900 and ILRlO 8389, and continues to monitor erosion
control measures at the Site.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent.
No change in ownership, corporate status or operator of the
Site shall in any way alter the responsibilities of the
Respondent under this Stipulation and Proposal for Settlement.
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.
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33 (c) of the Act, 415 ILCS 5/33 (c) (20041, 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;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
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. The alleged violations threatened human health and the
environment by allowing conditions to be present at the Site that
could have contaminated the waters of the State.
2. The residential subdivision at the Site has social and
economic benefit.
3. The residential subdivision at the Site is suitable for
the area in which it is located.
4. It is both technically practicable and economically
reasonable to comply with necessary General NPDES Storm Water
Permits and implement adequate erosion control measures at the
Site in compliance with the Act and Board regulations.
5. Respondent has subsequently complied with the Act and
the Board Regulations.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42 (h) of the Act, 415 ILCS 5/42 (h) (2004)
,
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;
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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
In response to these factors, the parties state as follows:
1.
Complainant has alleged that the violations continued
from at least September 23, 2004, to at least February 2005.
2. Respondent became diligent in attempting to come back
into compliance with the Act once the Illinois EPA sought to
initiate formal enforcement.
3. The penalty obtained negates the economic benefit
accrued as a result of the delay in the installation of silt
fences at the Site.
4. Complainant has determined, based upon the specific
facts of this matter, that a penalty of Twenty-Two Thousand
Dollars ($22,000.00) will serve to deter further violations and
I
aid in future voluntary compliance with the Act and Board
regulations.
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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
VIII.
TERMS OF SETTLEMENT
A. Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Twenty-Two Thousand Dollars ($22,000.00) within thirty (30) days
from the date the Board adopts and accepts this Stipulation. The
Respondent stipulates that payment has been tendered to
Respondent's attorney of record in this matter in a form
acceptable to that attorney. Further, Respondent stipulates that
said attorney has been directed to make the'penalty payment on
behalf of Respondent, within thirty (30) days from the date the
Board adopts and accepts this Stipulation, in a manner prescribed
below. The penalty described in this Stipulation shall be paid
by certified check or money order payable to the Illinois EPA,
designated to the Illinois Environmental Protection Trust Fund
and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer
Identification Number (FEIN) shall appear on the check. A copy
of the certified check or money order and any transmittal letter
shall be sent to:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
VANESSA A. VAIL
~ssistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth Floor
Chicago, Illinois 60601
JAMES DAY
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
2. Pursuant to Section 42
(g) of the Act, 415 ILCS 5/42 (g)
(2004), interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate allowable under
Section
1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003
(2004). Interest on any unpaid payment shall begin to accrue
from the date the payment is due and continue to accrue until the
date payment is received. When partial
payment(s) are made, such
partial payment shall be first applied to any interest on unpaid
payment then due and owing. All interest on payment owed shall
be paid by certified check or money order, payable to the
Illinois EPA, designated to the Illinois Environmental Protection
Trust Fund .and delivered to the address and in the manner
described above.
3. For purposes of payment and collection, Respondent may
be reached at the following address:
MR. KURT
CARLSON
7125 Windsor Lake Parkway
Loves Park, Illinois 61111
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
4. In the event of default of this Section VIII.A, the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney's fees.
B. Future Use
Notwithstanding any other language in,this Stipulation to
the contrary, and in consideration of the mutual promises and
conditions contained in this Stipulation, including the Release
from Liability contained in Section
VII1.D below, the Respondent
hereby agrees that 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 promulgated thereunder for all
violations alleged in the Complaint in this matter, for purposes
of Sections
39(a) and (i) and/or 42(h) of the Act, 415 ILCS
5/39(a) and(i) and/or 5/42(h) (2004). Further, Respondent agrees
to waive any rights to contest, in any subsequent enforcement
action or permit proceeding, any allegations that these alleged
violations were adjudicated.
C. Cease and Desist
The Respondent shall cease and desist from future violations
of the Act that were the subject matter of the Complaint as
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
outlined in Section 1II.C ("Allegations of Non-Compliance") of
this Stipulation.
D. Release from Liability
In consideration of the Respondent's payment of the
$22,000.00 penalty and any specified costs and accrued interest,
its commitment to Cease and Desist as contained in Section
VII1.C
and upon the Board's acceptance and approval of the terms of this
Stipulation and Proposal for Settlement, the Complainant
.
releases, waives and discharges the Respondent from any further
liability or penalties for violations of the Act 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 July
3, 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 violation of state, federal,
local, and common laws and/or regulations;
c. liability for natural resources damage arising-out of
I
the alleged violations; and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
d.
liability or clai'ms 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
3.315 of the Act, 415 ILCS
5/3.315, or entity other than the
Respondent.
E. 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 Site 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.
F. Enforcement of Board Order
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
13
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
Pollution Control Board and may be enforced as such through any
and all available means.
2. Respondent agrees that notice of any subsequent
proceeding to enforce the Board Order approving and accepting
this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process.
3. The parties agree that, if the Board does not approve
and accept this Stipulation and Proposal for Settlement, then
neither party is bound by the terms herein.
4. It is the intent of the Complainant and Respondent 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.
*
G. Execution of Document
This Stipulation shall become effective only when executed
by all parties and the Board. This Stipulation may be executed
by the parties in one or more counterparts, all of which taken
together, shall constitute one and
the.same instrument.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
WHEREFORE, Complainant and Respondent 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
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY
:
RO~ERT A. MESSINA
$,G
Chief Legal Counsel
KURT
CARLSON
BY:
b)b
tU
DATE:
ll/9/06
Name
:
KURT L.
CARLSON
Tit 1 e
:
Respondent
Stipulation
&
Proposal-Carlson.Draft.080906
15
DATE:
0
10
<
0
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
PCB NO. 07-001
v.
)
(Enforcement
-
Water)
1
KURT CARLSON,
1
1
Respondent.
1
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"), 415 ILCS 5/31
(c) (2) (2004)
,
moves that
the Illinois Pollution Control Board ("Board") grant the parties
in the above-captioned matter relief from the hearing
requirement imposed by Section
31(c)(l) of the Act, 415 ILCS
5/31
(c) (1) (2004)
.
In support of this motion, Complainant states
as follows:
1. The Complaint in this matter alleges violations of
Sections 12 (a), 12
(d) and 12 (f) of the Act, 415 ILCS 5/12 (a),
12
(d) and 12 (f) (2004)
.
2. Complainant is filing this Motion and a Stipulation
and Proposal for Settlement with the Board.
3. The parties have reached agreement on all outstanding
issues in this matter.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
4. This agreement is presented to the Board in a
Stipulation and Proposal for Settlement filed this same date'.
5. 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, 415 ILCS 5/31 (c) (2) (2004).
,
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, 415 ILCS 5/31
(c) (1) (2004)
. ,
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
BY:
,/&,++&+&/L
b
ESSA A. VA
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312). 814-5361
DATE: November 20, 2006.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006
CERTIFICATE OF SERVICE
I, VANESSA A. VAIL, an Assistant Attorney General, do certify that I caused to be
mailed this 20th day of November 2006, true and correct copies of the Stipulation and Proposal
for Settlement, Motion to Request Relief from Hearing Requirement and Notice of Filing by
certified mail with return receipt requested to the person listed on the said Notice of Filing, and
depositing same with the United States Postal Service located at
188 West Randolph Street,
Chicago, Illinois, 60601.
SA A. VAIL
Environmental Bureau
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 20, 2006