ECEVED
OFFICE
OF
THE
ATTORNEY
GENERAL
CLERK’S
OFFICE
STATE
OF
ILLINOIS
i!
12
2OO
Lisa
Madigan
STATE
OF
ILUNO1S
ATTORNEY
GENERAL
oIlutlon
Control
Board
November
6,
2009
John
T.
Therriault,
Assistant
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100
West
Randolph
Chicago,
Illinois
60601
Re:
People
v.
James
Buysee
PCB
No.
09-31
Dear
Clerk:
Enclosed
for
filing
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
to me
in the
enclosed,
self-addressed
envelope.
Thank
you
for
your
cooperation
and
consideration.
Very
truly
yours,
Christine
Zeivel
Environmental Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
CZ/pjk
Enclosures
500 South
Second
Street,
Springfield,
Illinois
62706
•
(217) 782-1090
•
T’T’Y:
(877)
844-5461
• Fax:
(217)
782-7046
100
West
Randolph
Street,
Chicago,
Illinois
60601
•
(312)
814-3000
e
TT’Y: (800)
964-3013
Fax:
(312)
814-3806
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS,
)
Complainant,
vs.
)
PCB No. 09-31
(Enforcement
- Water)
Respondent.
JAMES BUYSEE,
)
dibla J & B
Landscaping,
NOTICE OF FILING
1e
To:
James D. Buysee
J & B
Landscaping
L
31 Shaffer Drive
P.O. Box 398
Coal Valley, IL 61240
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
MATTHEWJ. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
CHRISTINE ZEI EL
Assistant Attorney General
Environmental
Bureau
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
November
6,
2009
CERTIFICATE
OF
SERVICE
I hereby
certify that
I did
on
November
6,
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
SETTLEMENT:
To:
James
D.
Buysee
J &
B Landscaping
31
Shaffer
Drive
P.O. Box 398
Coal Valley,
IL 61240
and the
original and
ten
copies
by
First
Class
Mail with
postage
thereon
fully prepaid
of the
same
foregoing
instrument(s):
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:
Carol Webb
Hearing
Officer
Illinois
Pollution Control
Board
1021
North
Grand
Avenue
East
Springfield,
IL
62794
CHRISTINE
ZEIVEL
Assistant
Attorney
General
This
filing is submitted
on
recycled paper.
BEFORE
THE
ILIJNOIS
POLLUTION
CONTROL
BOARD
PEOPLE OF
THE STATE
OF
ILLINOIS,
Compainant,
vs.
)
PCB No.
09-31
)
(Enforcement
- Water)
‘o’s
Respondent.
)
JAMESBUYSEE,
)
dibla
J &
B Landscaprng,
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 5131(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,
415 ILCS
5131(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, 415 ILCS 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, 415
ILCS 5/31(c)(1) (2008).
Respectfully submitted,
PEOPLE
OF THE STATE OF
ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEWJ. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:_______________
CHRISTINE ZEIVEL
Environmental Bureau
Assistant
Attorney General
500
South Second
Street
Springfield, Illinois 62706
217/782-9031
Dated: November 6,
2009
2
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
)
)
Complainant,
)
v.
)
PCB
NO.
O-OØ
)
(Water-En?
JAMES
BUYSEE,
)
d/bla
J
& B
LANDSCAPING,
)
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 James
Buysee
(“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.
(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
November
12,
2008, a Complaint
was
filed on
behalf of the
People
of the
1
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 JLCS 5/3
1
(2006), 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 (2006).
3.
At all times relevant
to
the
Complaint, Respondent was a landscape contractor
doing
business as J & B Landscaping (“J
&
B”) in Illinois. At all times relevant to the
Complaint, Respondent was located
at
Route
6
and Niabi Road approximately two miles
north of
Coal Valley,
Rock
Island County, Illinois (“site”).
4.
On October 5, 2006, the Illinois
EPA conducted an inspection of the
Respondent’s
site
and
observed
a
green, dried hydroseed mixture that had been dumped on the bank
of
Shaffer
Creek, a tributary to the Rock
River.
A
trail of the green mixture flowing to the creek was
noted.
5.
When the Respondent completed a
landscaping
job,
he dumped the hydroseed
mixture
on
the
bank and into Shaffer Creek.
6.
A sample of the green dried
material
was
collected and analysis showed the
presence of the
pesticide
dichioro-diphenyl-trichioroethane (“DDT”) at 17 parts per billion
(“ppb”)
or micrograms/kilogram
(“ug/Kg”),
the
DDT derivative; dichloro-diphenyl
dichioroethylene
(“DDE”)
at
16
ppb,
and
aroclor-1248 at 320 ppb.
B.
Allegations of Non-Compliance
Complainant
contends that the Respondent has violated the
following provisions of
the
Act
and Board
regulations:
2
Count I:
Water Pollution
By causing or allowing
the discharge
of the hydroseed
mixture into Shaffer
Creek,
the Respondent violated Section
12(a) of the Act,
415 ILCS 5/12(a)
(2006).
By
dumping
the hydroseed
mixture on the bank of Shaffer
Creek,
the Respondent
violated
Section 12(d) of the
Act,
415
ILCS 5/12(d) (2006).
Count II:
Open Dumping
Violations
By
causing or
allowing
open dumping of leftover
hydrosed
mixture
at
its
site, the Respondent has violated
Section 2 1(a)
of the Act, 413 1LCS .,/zi(a)
(006).
By disposing of leftover
hydroseed mixture at his site, the
Respondent violated
Section 21(e) of the Act, 415 ILCS
5/21(e) (2006).
By spilling hydroseed mixture onto the bank and into
Shaffer Creek, the Respondent violated Section
21
(p)(
4)
of
the Act, 415 ILCS 5/21(p)(4) (2006).
Count III:
Water Quality Violations
By discharging bright green colored hydroseed onto
the
land
and into the waters of the State,
the Respondent violated
Section
302.203 of the
Board’s Water Pollution Regulations,
35
Iii. Adm.
Code 3 02.203.
C.
Admission of Violations
The Respondent
admits
to the violations alleged in the Complaint filed in this matter and
referenced within Section
I.B.
herein.
D.
Compliance Activities to Date
The Respondent
instituted
a
company policy to clean out its hydroseed equipment upon
completion
of all landscaping work at each job site. In addition, all
leftover
hydroseed
mixture
is
3
now being applied to the finished landscaped
area rather
than
disposing of it
at the
Respondent’s
site.
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).
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
of
location
in the area
involved;
4.
the
technical
practicability and economic reasonableness
of
reducing
or
4
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.
Human
health
and the environment
were threatened
by the
Respondent’s
violations.
2.
There
is
social
and economic
benefit
to Respondent’s
business.
3.
Operation
of
Respondent’s
business
is suitable
for
the
area
in
which
the
discharges
occurred.
4.
Compliance
with the
Act and
Board regulations
is
both
technically
practicable
and
economically
reasonable.
5.
Respondent
has subsequently
complied
with the
Act
and
the
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
5
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
these
factors,
the Parties
to the
Stipulation
state as
follows:
I.
The
violations
were first
brought the
attention
of
the Illinois
EPA
on October
4,
2006. The
Respondent’s
method
of
disposal
of leftover
hydroseed
mixture was
ongoing
for
over
six
years.
The
violations
were resolved
in the spring
of
2007.
2.
Respondent
was diligent
in attempting
to
come
back into
compliance
with the
Act, Board
regulations
and
applicable
federal
regulations,
once
the Illinois
EPA notified
him
of
his noncompliance.
3.
The Respondent
avoided
daily,
weekly,
monthly
and
yearly
costs associated
primarily
with
the
extra
labor
expense
of properly
disposing
of
the contaminants
in
the correct
manner.
Utilizing
the United
States Environmental
Protection
Agency’s
BEN
model,
the
Respondent
obtained
a
$10,495.00
economic
benefit
from the
noncompliance
in this matter.
4.
Complainant
has
determined,
based
upon the
specific
facts
of
this
matter, that
a
penalty
of fourteen
thousand
and three
hundred
dollars
($14,300.00)
will
serve
to
deter further
violations
and
aid
in
future
voluntary
compliance
with
the
Act
and
Board
regulations.
6
5.
To Complainant’s
knowledge,
Respondent
has
no previously adjudicated
violations
of
the Act.
6.
Self-disclosure
is not at issue in this
matter.
7.
The settlement
of this matter
does
not
include
a supplemental environmental
project.
V.
TERMS
OF
SETTLEMENT
A.
Penalty
Payment
1.
The Respondent
shall
pay
a civii
penalty in the sum
of foUrteen thousand
and
three
hundred
dollars
($
14,300.00).
The Respondent
shall make three
payments according
to the
following
payment
schedule:
Payment
Number
1:
$4,800
within thirty
(30) days
of Board approval.
Payment
Number 2:
$4,800
within
one
hundred and ninety
(190) days of Board
approval.
Payment
Number 3:
$4,700
within
three
hundred and sixty
(360)
days of Board
approval.
B.
Default
and
Interest
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
7
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
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:
Environmental
Bureau
Illinois
Attorney
General’s
Office
500
South
Second
Street
Springfield,
Illinois
62706
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
Illinois EPA,
its employees
and
representatives,
and
the
Attorney
General,
her employees
and
representatives,
may
take photographs,
samples,
and collect
8
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.
3.
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
$
14,300.00
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
November
12, 2008.
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.
9
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
3.3 15 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
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,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
LISA
MADIGAN
Attorney
General
State of Illinois
DOUGLAS P. SCOTT, Director
Illinois
Environmental Protection Agency
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos
Litigation Division
7
;;/
BY:
BY:
/
f9-EZ
—)
THOMAS DAVIS,
Chief
J. KIM
Environmental
Bureau
Chief Legal Counsel
Assistant
Attorney General
DATE:
///o
(/
7
DATE:
BY:
_9A:z
DATE:______________
11