RECEn/ED
CLERK’S OFF(CE
MAR 182005
OFFICE OF THE
A’ITORNEY GENERAL
Pollution Control Board
Lisa Madigan
ATTORNEY GENERAL
March
17,
2005
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
Re:
People v. Fairacres Subdivision Association
PCB No. 05-86
Dear Clerk Gunn:
Enclosed forfiling please find the original and ten copies of a NOTICE OF FILING, MOTION
FOR RELIEF FROM HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR
SETTLEMENT in regard to the.above-captioned matter. Please file the originals and return file-
stamped copies of the documents to our office in the enclosed, self-addressed, stamped envelope.
Thank you for your cooperation and consideration.
Very truly yours,
Thomas Davis, Chief
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
TD/pp
Enclosures
500 South Second Street, SpringOeld, Illinois 62706
•
(217) 782-1090
•
rl’Y:
(217)
785-2771
•
Fax: (217) 782-7046
100 \Vest Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TTV: (312) 814-3374
•
Fax:
(312)
814-3806
1001 &~stMain, Carbondale, Illinois 62901
•
(618) 529-6400
•
T~1Y:(618) 529-6403
•
Fax: (618) 529-6416
BEFORE THE ILLINOIS POLLUTiON CONTROL BOARD
RECE~VED
PEOPLE OF THE STATE OF
)
CLERK’S OFFiCE
ILLINOIS,
)
)
MAR182005
Complainant,
)
STATE OF ILLINOIS
)
Pollution Control Board
vs.
)
PCBNo.05-86
)
(Enforcement)
FAIRACRES SUBDIVISION ASSOCIATION,
)
an Illinois not-for-profit corporation,
)
)
Respondent.
NOTICE OF FILING
To:
Joseph Johnson
Fairacres Subdivision Association
P.O. Box25
1020 B Street
Silvis, IL 61282
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.
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:____________________
THOMAS DAVIS, Chief
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: March 17, 2005
1
CERTIFICATE OF SERVICE
I hereby certify that I did on March 17, 2005, 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 SETTLEMENT:
To:
Joseph Johnson
Fairacres Subdivision Association
P.O. Box 25
1020 B Street
Silvis, IL 61282
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s):
To:
Dorothy Gunn, 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:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
THOMAS DAVIS, Chief
Assistant Attorney General
This filing is submitted on recycled paper.
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
MAR 18 2005
PEOPLE OF THE STATE OF
)
STATE OF ILLINOIS
ILLINOIS,
)
Pollution Control Board
Complainant,
)
vs.
)
PCBNo. 05-86
)
(Enforcement)
FAIRACRES SUBDIVISION ASSOCIATION,
)
an Illinois not-for-profit corporation,
)
Respondent.
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) (2002), 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) (2002). In support of
this motion, Complainant states as follows:
1.
On November 9, 2004, Complainant filed a Complaint with the Board, alleging
violations by the Respondent of the Illinois Environmental Protection Act and Board
Regulations.
2.
The parties have reached agreement on all outstanding issues in this matter.
3.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion.
4.
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) (2002).
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, 415 ILCS 5/31 (c)(1) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
~
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: March 17, 2005
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD REcE~vED
LERK S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
MAR
182005
Complainant,
)
STATE OF
ILLII’~IOIS
)
POlI~ti~~Control Boar
v.
)
PCB NO. 05-86
)
(Enforcement)
FAIRACRES SUBDIVISION ASSOCIATION,
)
an Illinois not-for-profit corporation,
)
)
Respondent.
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
FAIRACRES SUBDIVISION ASSOCIATION (“Respondent”), have agreed to the making of this
Stipulation and Proposal for Settlement (“Stipulation”) andsubmit it to the Illinois Pollution
Control Board (“Board”) 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 factsi~
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, 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.
1
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 November 9, 2004,
a
Complaint was filed on behalf of the People of the State
of Illinois by Lisa Madigan, Attorney General of the State of Illinois, on her own motion and upon
the request of the Illinois EPA, pursuant to Section 31 of the Act, 415 ILCS 5/31(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, Respondentwas and is an Illinois not-for-
profit corporation.
B.
Site Description
1.
At all times relevant to the Complaint, Respondent was and is a “public water
supply” as that term is defined under Section 3.365 of the Act, 415 ILCS 5/3.365 (2002).
Respondent’s public water supply was and is a “community water supply” or “CWS” as that
term is defined under Section 3.145 of the Act, 415 ILCS 5/3.145 (2002).
2
2.
The Association is comprised of the homeowners of the Fairacres Subdivision
located in Silvis, Rock Island County, Illinois. The water supply serves approximately 57 homes
and 200 residents from one drilled well. The water is chlorinated, fluoridated, and then stored
within a 7,500 gallon hydropneumatic tank, the capacity of which meets the 35 gallon per capita
standard.
3.
Pursuant to its approved written sample siting plan, the Association collects
fewer than 40 samples per month.
4.
During May 2003, one sample collected by the Association was determined to be
total-coliform positive. The Association failed to collect a set of repeat samples within 24 hours
of being notified of the positive results.
5.
During June 2003, two samples collected by the Association were determined to
be total-coliforrn positive.
6.
During August 2003, two samples collected by the Association were determined
to be total-coliform positive.
7.
The Association is required to add fluoride to the water, but failed to do so during
the month of October 2003, due to the malfunction of the fluoride pump.
8.
The Association failed to submit the required reports and records for the month of
October 2003.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
Count I:
Contaminant and sampling violations, in violation of Sections
611.121(a), 611.325(a)(2), and 611.522(a) of the Board’s Public Water
Supplies Regulations, 35 III. Adm. Code 611.121(a), 611.325(a)(2), and
611 .522(a), and Section 1 8(a)(2) of the Act, 415 ILCS 5/1 8(a)(2) (2002).
3
Count II:
Failure to meet fluoridation requirements, in violation of Section 611.125
of the Board’s Public Water Supplies Regulations, 35 III. Adm. Code
611.125, and Section 18(a)(2) of the Act, 415 ILCS 5/18(a)(2) (2002).
Count Ill:
Failure to submit the required reports and records, in violation of
Sections 611.831, 653.605, and 653.704 of the Board’s Public Water
Supplies Regulations, 35 III. Adm. Code 611.831, 653.605, and 653.704,
and Section 19 of the Act, 415 ILCS 5/19 (2002).
D.
Admission of Violations
The Respondent admits to the violation(s) alleged in the Complaint filed in this matter
and referenced within Section lll.C herein.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the
Respondent, 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.
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 III. 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)(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:
4
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.
Respondent’s violations described above increased the possibility that the health
and general welfare of the residents of Fairacres Subdivision might be endangered from
ingestion of unsafe water;
2.
The parties agree that Respondent’s facility is of social and economic benefit;
3.
Respondent’s facility is suitably located in the Fairacres Subdivision in Silvis,
Rock Island County, Illinois.
4.
The parties agree that complying with the Act and regulations is technically
practicable and economically reasonable; and
5.
Respondent implemented measures subsequent to the alleged violations that are
the subject of the Complaint in this matter in order to operate in compliance with the Act and the
associated regulations.
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2002), 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:
5
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.
In response to thesefactors, the parties state as follows:
1.
Fairacres was outof compliance with various contaminant and sampling
requirements from May 2003 through August 2003, and was out of compliance with fluoridation
and reporting and recording requirements during the month of October2003.
2.
Prior to intervention by the Illinois EPA, Fairacres did not exercise due diligence
in maintaining equipment and becoming familiar with required procedures. Attention to these
deficiencies was adequate following Illinois EPA intervention.
3.
The Complainant believes the economic benefit to the Respondent is limited, and
same is recovered by the penalty provided for herein.
6
4.
Complainant has determined that a penalty of seven hundred and fifty dollars
($750.00) will serve to deter further violations and aid in future voluntary enforcement of the Act
and applicable regulations.
5.
To Complainant’s knowledge, Respondent has no previously
adjudicated violations of the Act.
6.
The Respondent did not voluntarily self-disclose the non-compliance to the
Agency; and
7.
The settlement of this matter does not include a supplemental environmental
project.
VIII. TERMS OF SETTLEMENT
. .
r
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of seven hundred and fifty
L
dollars ($750.00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation.
The penalty described in this Stipulation shall be paid by certifie,d ch~~k,money .. .
order or electronic funds transfer 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), 363325507, shall appear on the check. A copy of the certified check, money order or
record of electronic funds transfer and any transmittal letter shall be sent to:
Jennifer Bonkowski
Assistant Attorney General
Environmental Bureau
7
500 South Second Street
Springfield, IL 62702
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2002), 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 5/1 003 (2002). 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, money order or electronic funds
transfer, 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:
Joseph Johnson
Fairacres Subdivision Association
.
Post Office Box 25
1020 B Street
. .
Silvis, Illinois 61282
4.
In the event of default of this Section VlIl.A, the Complainant shall be entitled to
all available relief including, but not limited to, reasonable costs of collection and reasonable
attorney’s fees.
8
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 Vlll.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 Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or
5/42(h)(2002). 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 and Board
Regulations that were the subject matter of the Complaint as outlined in Section lll.C•
(“Allegations of Non-Compliance”) of this Stipulation.
9
D.
Release from Liability
In consideration of the Respondent’s payment of the $750.00 penalty and any specified
costs and accrued interest, completion of all activities required hereunder, to Cease and Desist
as contained in Section VIll.C and upon the Pollution Control 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
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 November 9, 2004. 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
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.
10
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 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.
F.
Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents required under this
Stipulation, except for payments pursuant to Section Vlll.A (“Penalty Payment”) of this
Stipulation shall be submitted as follows:
As to the Complainant
Jennifer Bonkowski
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
As to the Respondent
Joseph Johnson
Fairacres Subdivision Association
Post Office Box 25
1020 B Street
Silvis, Illinois 61282
11
G.
Modification of Stipulation
The parties 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 Vlll.F. 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 each party, and then accompany a joint motion to the Illinois Pollution Control
Board seeking a modification of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended.
H.
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 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.
12
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,
Dated:________
Dated
://4~2~X2$
Dated :0
- o7-c5~
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONM~4’~JTAL
PROTECTION.AGENt~’A
BY~
(ILLIAM D. INGERS~’LL
Acting Chief Legal Counsel
Division of Legal Counsel
FAIRACRES SUBDIVISION ASSOCIATION,
an Illinois not-for-profit corporation,
Respondent
13
