BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
Complainant,
v.
)
)
)
)
)
)
)
)
RUPE CONTRACTING, INC.,
)
an Illinois corporation, and JOHN
A.
RUPE,)
individually and as owner and operator of )
Rupe Contracting, Inc.,
)
Respondents.
)
)
PCB 08-83
(Enforcement - Water)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that today I have electronically filed with the Office
of
the Clerk of the Pollution Control Board a Stipulation and Proposal for Settlement and a
Motion to Request Relief from Hearing Requirement, true and correct copies
of which
are attached and hereby served upon you.
DATE: June
30, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:
A{!;;~~~
Assistant Attorney General
Environmental Bureau
69 West Washington, 18th Floor
Chicago, Illinois
60602
(312) 814-0660
-- ---------------------------------------------,
SERVICE LIST
Rupe Contracting, Inc.
John
A. Rupe, President and Registered Agent
3096 800th Road
P.O. Box 201
Wenona, Illinois 61377
John
A. Rupe
451 State Route
251
Rutland, Illinois 61358
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
Complainant,
v.
)
)
)
)
)
)
)
)
RUPE CONTRACTING, INC.,
)
an Illinois corporation, and
JOHN
A.
RUPE,)
individually and as owner and operator of
)
Rupe Contracting, Inc.,
)
Respondents.
)
)
PCB 08-83
(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 relief from the
hearing requirement in the above-captioned matter. In support thereof, the Complainant
states as follows:
1.
On May 15, 2008, the Complaint was accepted for hearing by the
Pollution Control Board ("Board") in this matter.
On June 30, 2009, a Stipulation and
Proposal for Settlement was filed with the Board.
If accepted, the Stipulation and
Proposal for Settlement will dispose of the case.
2.
Section 31(c)(2)
of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c )(2) (2006), allows the parties in certain enforcement cases to request
relief
from the mandatory hearing requirement where the parties have gubmitted to the Board a
stipulation and proposal for settlement. Section
31 (c )(2) provides:
Act.
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 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).
3.
No hearing is currently scheduled in the instant case.
4.
The Complainant requests the
relief conferred by Section 31 (c )(2) of the
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) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:
~~~r
ANDREW ARMSTRONG
Assistant Attorney General
Environmental Bureau
69 West Washington, 18th Floor
Chicago, Illinois
60602
(312) 814-0660
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
Complainant,
v.
)
)
)
)
)
)
)
)
RUPE CONTRACTING, INC.,
)
an Illinois corporation, and
JOHN A. RUPE,)
individually and as owner and operator of
)
Rupe Contracting, Inc.,
)
Respondents.
)
)
PCB 08-83
(Enforcement - Water)
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 RUPE CONTRACTING, INC. and
JOHN A. RUPE ("Respondents") ("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
("AcC),
415 ILCS 5/1
et seq.
(2006), and the Board
Regulations alleged in the Complaint, except as otherwise provided herein.
It
is the intent of the
parties to this StipUlation that it
be a final adjudication of this matter.
I. STATEMENT OF FACTS
A.
Parties
1.
On May 1, 2008, 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 (2006), against
the Respondents.
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 (2006).
3.
At all times relevant to the Complaint, Respondent Rupe Contracting, Inc. ("Rupe
Contracting") was an Illinois corporation that was authorized to transact business in the State
of
Illinois.
4.
At all times relevant to the Complaint, Respondent John
A.
Rupe ("John Rupe")
was the president, owner, and registered agent
ofRupe Contracting, and was in control of and
responsible for the day-to-day operations
of Rupe Contracting.
5.
Complainant alleges that, on September 11,2006, the Respondents performed
grading and filling work on property located in Spring Valley, Bureau County, Illinois owned by
another party
("the Site"). Complainant alleges that, in the course
of performing grading and
filling work at the Site, the Respondents struck and ruptured a sanitary sewer line.
B.
Allegations of Non-Compliance
Complainant contends that the Respondents have violated the following provisions of the
Act and Board regulations:
2
Electronic Filing - Received, Clerk's Office, June 30, 2009
Count I:
Count II:
Creating a Water Pollution Hazard
Violation
of Section 12(d) ofthe Act, 415 ILCS
5/12(d) (2006).
Causing Sanitary Sewage Overflow
Violation
of Section 12(a) ofthe Act, 415 ILCS 5/12(a), and Section
306.304
ofthe Board's Water Pollution Regulations, 35 Ill. Adm. Code
306.304.
c.
Non-Admission
of Violations
The Respondents represent that they have 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 Respondents do not
affirmatively admit the allegations
of violation within the Complaint and referenced within
Section I.B herein, and this Stipulation shall not be interpreted as including such admission.
D.
Compliance Activities to Date
On September 19, 2006, the Respondents repaired the ruptured sewer line at the Site by
installing a new section of pipe and pouring concrete to seal the line.
II. APPLICABILTY
This Stipulation shall apply to and be binding upon the Parties to the Stipulation, and any
officer, director, agent, or employee
of the Respondents, as well as any successors or assigns of
the Respondents. The Respondents shall not raise as a defense to any enforcement action taken
pursuant to this Stipulation the failure
of any of their 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 Respondents in any subsequent
enforcement action or permit proceeding as
proof of a past adjudication of violation of the Act
3
Electronic Filing - Received, Clerk's Office, June 30, 2009
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).
III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the 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 oflocation 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 to the Stipulation state the following:
1.
The environment was threatened by the Respondents' violations.
2.
There was social and economic benefit afforded by the Respondents' grading and
filling work at the Site.
3.
The Respondents' grading and filling work at the Site was suitable for the area in
which it was located, so long as it had been conducted in accordance with all applicable statutory
and regulatory requirements.
4
Electronic Filing - Received, Clerk's Office, June 30, 2009
4.
Compliance with all applicable statutory and regulatory requirements for the
Respondents' grading and filling work
at the Site was both technically practicable and
economically reasonable.
5.
On September 19, 2006, the Respondents repaired the ruptured sewer line at the
Site
by installing a new section of pipe and pouring concrete to seal the line. As ofthe date of
filing of this Stipulation, the Respondents' grading and filling work at the Site is complete.
IV. CONSIDERATION OF SECTION 42(b) 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 ofthe 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
5
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 September 11, 2006 rupture of a sewer line at the Site allowed an estimated
108,000 gallons
of untreated sewage to leak from the ruptured sewer line and accumulate in an
adj acent ditch. The sewer line was not completely repaired until September 19, 2006.
2.
Respondents were diligent in repairing the ruptured sewer line at the Site, after
local authorities requested they do so.
3.
Respondents did not receive an economic benefit from causing the rupture of the
sewer line
at the Site. The rupture was not caused by a failure to spend money to install
necessary control equipment
4.
The Complainant has determined, based upon the specific facts of this matter, that
a penalty
of Two Thousand Eight Hundred Thirty-Five Dollars ($2,835.00) will serve to deter
further violations and aid in future voluntary compliance with the Act and Board Regulations.
5.
To the Complainant's knowledge, the Respondents have 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.
6
v.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondents shall jointly and severally pay a civil penalty in the sum of Two
Thousand Eight Hundred Thirty-Five Dollars ($2,835.00) within thirty (30) calendar days from
the date the Board adopts and accepts this Stipulation.
B.
Interest and Default
1.
If the Respondents fail to make any payment required by this Stipulation on or
before the date upon which the payment is due, the Respondents 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 Respondents 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
payable to the Illinois EPA for deposit into the Environmental Protection Trust Fund ("EPTF").
Payments shall be sent by first class mail and delivered to:
Illinois Environmental Protection Agency
7
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and case 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:
Andrew Armstrong
Assistant Attorney General
Environmental Bureau
69 West Washington
Street, 18th Floor
Chicago, Illinois 60602
D.
Future Compliance
1.
Effective immediately, the Respondents shall conduct all construction activities in
accordance with the Act, Board Regulations, and all applicable permits issued by the Illinois
EPA.
2.
This Stipulation in no way affects the responsibilities of the Respondents to
comply with any other federal, state,
or local laws or regulations, including but not limited to the
Act and Board Regulations.
3.
The Respondents 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 Respondents' payment ofthe $2,835.00 penalty and their
commitment to cease and desist as contained in Section V.D.3 above, and upon the Board's
approval
of this Stipulation, the Complainant releases, waives, and discharges the Respondents
8
from any further liability or penalties for the violations ofthe 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 the Complainant's Complaint filed on May
1,
2008. The Complainant reserves, and this Stipulation is without prejudice to, all rights of the
State
of Illinois against the Respondents 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 Respondents' 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 may have against any person, as defined by Section
3.315
of the Act, 415 ILCS
5/3.315,
or entity other than the Respondents.
F.
Enforcement of Stipulation
Upon the entry of the Board's Order approving and accepting this Stipulation, that Order
is a binding and enforceable order
ofthe Board and may be enforced as such through any and all
available means.
G.
Execution of Stipulation
9
Electronic Filing - Received, Clerk's Office, June 30, 2009
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
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,
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
BY:
Environmental Bureau
Assistant Attorney General
DATE: ({
11
I
£:11
RUPE CONSTRUCTION, INC.
BY:
Name:
-----------------
Title: ______________ _
DATE:
______________ _
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
A
Chief Legal Counsel
DATE:
-5-tl-""'"=i+-,\
0=--5-1--__
JOHN A.RUPE
BY:
John A. Rupe
DATE:
______________ _
11
Electronic Filing - Received, Clerk's Office, June 30, 2009
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,
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
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:
______________ _
RUPE CONSTRUCTION, INC.
BY:~~
Name:
Title:
~~-
.t)ld.9&0
DATE:
~/,J2
,It) 5
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY: ____________________ _
ROBERT
A. MESSINA
Chief Legal Counsel
DATE:
______________ _
JOHNA.RUPE
DATE:
6/;2/09
11
CERTIFICATE OF SERVICE
I,
ANDREW ARMSTRONG, an Assistant Attorney General, do certify that I
caused to be mailed this 30th day
of June, 2009, the foregoing Motion to Request Relief
from Hearing Requirement, StipUlation and Proposal for Settlement, and Notice
of Filing,
upon the persons listed on said notice,
by U.S. first-class mail.
ANDREW ARMSTRONG
Assistant Attorney General
Environmental Bureau
69 West Washington, 18th Floor
Chicago,
IL
60602
(312) 814-0660
Electronic Filing - Received, Clerk's Office, June 30, 2009