RECEIVED
r~oK’SOF
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLc~’
SEP
022003
PEOPLE OF THE STATE
OF ILLINOIS,
STATE0F1~~~rd
Complainant,
poIIuttOflC0fl
-vs-
)
No.
PCB
03
-
128
(Enforcement)
ROBERT HANM,
doing business as
THREE R’S PIER BUILDERS,
Respondent.
TO:
Mr.
Michael
S. Grant
Attorney for Respondent
28 East Grand Avenue
Fox Lake,
Ii.
60020-0526
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today,
September
2,
2003,
filed
with the Office of the Clerk of
the Illinois Pollution Control Board
an original and nine copies ofa
Stipulation and Proposal
for
Settlement and a Motion to Request Relief from Hearing Requirement,
copies of which are attached herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State
of Illinois
BY:
_________________
PAULA BEÔKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20t1~ Flr.
Chicago,
IL 60601
(312)
814-1511
THIS FILING IS SUBMITTED ON RECYCLED PAPER
•
RECEIVEX~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’SOFR(~
SEP 022003
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILLINOIS
F
)
Pollution
Control Board
-vs-
)
No.
PCB
03
-
128
(Enforcement)
ROBERT
HAMM,
doing business as
THREE R’S PIER BUILDERS,
Respondent.
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 February 26,
2003,
a Complaint was filed with the
Pollution Control Board
(“Board”)
in this matter.
On September
2,
2003,
a Stipulation and Proposal for Settlement was filed with the
Board.
2.
Section 31(c) (2)
of the Illinois Environmental Protection
Act
(TIActTI)
,
415 ILCS 5/31(c)
(2)
,
effective June 26,
2002,
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.
Section 31(c) (2)
provides:
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
1
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
Act.
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), effective June 26,
2002.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
•
By:
/~OJ~
~
I~’L~~
PAULA BECKER WHEELER
•
•
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Fl.
Chicago, Illinois
60601
(312)
814-1511
2
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
)
PCB 03-
128
(Enforcement)
ROBERT HAMM,
doing business as
THREE R’S PIER BUILDERS,
Respondent.
STIPULATION AND PROPOSAL
FOR SETTLEMENT
Complainant,
PEOPLE OF THE
STATE OF ILLINOIS,
by LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois,
at
the
request of the
Illinois
Environmental
Protection
Agency,
and
Respondent, ROBERT HANM,
an individual doing business as Three
R’s Pier Builders,
do hereby agree to this Stipulation and
Proposal for Settlement
(“Stipulation”)
.
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 full 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 this or
any other proceeding except to enforce the terms of this
agreement.
Notwithstanding the previous sentence,
this
Stipulation and Proposal for Settlement and any Illinois
Pollution Control Board
(“Board”)
order accepting same may be
-1-
used in any future enforcement action as evidence of a past
adjudication of violation of the Illinois Environmental
Protection Act
(“Act”)
for purposes of Sections 39(1) ‘and 42(h)
of the Act,
415 ILCS 5/39(i) and 5/42(h) (2002)
I.
JURISDICTION
The Board has jurisdiction of the
subject
matter
herein
and
of the parties consenting hereto pursuant to the 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
Proposal for Settlement and to legally bind them to it.
III.
APPLICABILITY
This Stipulation and Proposal for Settlement shall apply to
and be binding upon the Complainant and Respondent, and each of~
them, and on any agent,
employee or servant
of Respondent,
as
well as Respondent’s successors and assigns. The Respondent
shall
not raise as a defense to any enforcement action taken pursuant
to this settlement the failure of his agents,
servants,
or
employees to take such action as shall
be required to comply with
the provisions of this settlement.
-2-
Iv.
STATEMENT OF FACTS
A.
Parties
1.
The Attorney General of the State of Illinois brought
this action on her own motion,
as well as at the request of the
Illinois Environmental Protection Agency
(“Illinois EPA”),
pursuant to the statutory authority vested in her under Section
31 of the Act,
415 ILCS 5/31
(2002)
2.
Illinois EPA is an agency of the State of Illinois
created pursuant to Section 4 of the Act,
415 ILCS 5/4
(2002),
and is charged,
inter alia,
with the duty of enforcing the Act.
3.
Respondent ROBERT HAMM,
is an Illinois resident,
doing
business as Three R’s Pier Builders.
B.
Facility Description
Respondent owns and operates a business involved in the
design and construction of shoreline structures.
On at least
April
27-29,
2001,
Respondent was installing a breakwall along
the shore of Fox Lake in the town of Fox Lake,
Lake County,
Illinois
(“Site”)
.
In the process of installing sheet pile,
Respondent severed an eight inch sanitary sewer line owned by the
Town of Fox Lake resulting in the discharge of sewage into Fox
Lake.
C.
Noncompliance
Complainant has alleged the following violations of the Act
against the Respondent:
-3—
COUNT
I:
WATER POLLUTION, violation of Sections
12(a)
of the
Act,
415 ILCS 5/12(a)
(2002),
and 35
Ill. Adm.
Code
302.203;
COUNT II:
INCREASING DISCHARGE OF CONTAMINANTS WITHOUT PERMIT,
violation
of
415
ILCS
5/12(c)
(2002),
and
35
Ill.
Adm.
Code
306.304;
COUNT III: CREATING A WATER POLLUTION HAZARD, violation of 415
ILCS 5/12(d)
(2002)
D.
Response to allegations
Respondent neither admits nor denies the allegations in the
complaint.
V.
IMPACT ON THE PUBLIC RESULTING FROM NONCOMPLIANCE
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:
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
-4-
5.
any subsequent compliance.
ANALYSIS:
The parties mutually state as follows:
1.
Character and Degree of Injury:
The impact to the public from the alleged
violations
of
the
Act was the actual and threatened water pollution in an Illinois
waterway, Fox Lake.
2.
Social and Economic Benefit:
The parties agree that operation of
Respondent’s
business
is
of social and economic benefit, provided it operates in
conformance
with
the
requirements
of
the
Act
and
pertinent
Board
water
pollution
regulations.
3.
Suitability to the Area:
Operation of Respondent’s business at the Site is suitable
to
the
area,
provided
that
Joint
Utility
Locating
Information
for
Excavators(”J.U.L.I.E.”)
and
the
local
municipality
are
called
to
locate
sanitary
sewer
lines
prior to ‘excavation.
4.
Technical Practicability:
• Calling J.U.L.I.E.
and the local
authorities
prior
to
construction at the shoreline
is botI~technically practicable and
economically reasonable.
5.
Subsequent Compliance:
Respondent
i’s
currently in compliance,
after the Village of
Fox Lake repaired the sewer line.
-5-
VI.
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:
1.
‘
the duration and gravity of the violation;
2.
the presence
or
absence
of
due
diligence on the
part of
the violator 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
violator
because of delay in compliance with requirements;
4.
the amount of monetary penalty which will serve to
deter
further violations
by
the violator and
to
•
otherwise
aid
in
enhancing
voluntary
compliance
with this
Act by
the violator and other persons
•
similarly subject to the Act; and
5.
the
number,
proximity
in
time,
•
and
gravity
of
previously adjudicated violations
of
this Act by
the violator.
ANALYSIS:
•
1.
Duration
and
Gravity
of
the
Violation:
Complainant has alleged that the conditions which caused the
alleged
violations
existed
from
at
least
April
27
to
April
29,
2001,
and resulted in approximately 10,000 gallons of untreated
sewage flowing into Fox Lake.
2.
Diligence of Respondent:
-6-
The Respondent was not diligent because he did not call the
village
or
J.TJ.L.I.E.
before
excavation.
The
Village
performed
the repair work to the sewer line. The Respondent was responsive
to the Agency and the Attorney General’s Office.
3.
Economic Benefit of Noncompliance:
The Respondent did not receive any substantial economic
benefit from the alleged noncompliance.
4.
Deterrence:
A penalty of Two Thousand Five Hundred Dollars
($2,500.00)
against the Respondent will deter future noncompliance by the
Respondent and others.
5.
Compliance History:
The Respondent has no previously adjudicated violations of
the Act and Board Regulations.
VII.
TERMS OF SETTLEMENT
1.
The
Respondent
neither
admits
nor denies the violations
as alleged in the complaint against him.
2.
The Respondent
shall pay the following penalty:
a.
Respondent
shall pay the sum of Two Thousand Five
Hundred
Dollars
($2,500.00);
The penalty shall be paid within thirty
(30)
days after the
date on which the Board adopts a final order approving this
Stipulation and Proposal for Settlement.
The payment shall be
-7-
made by certified check or money order, payable to the Illinois
EPA,
designated for deposit into the Environmental Protection
rFrust Fund,
and shall be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
3.
Respondent’s Social Security number must be on the
certified check or money order.
For issues relating to the
payment of the penalty,
the Respondent may be reached at the
‘following address:
Mr. Robert Hamm
34678 Michael Court
Ingleside,
Illinois 60041
A copy of the certified check or money order, and all
related correspondence,
shall be sent by first class mail
to:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
•
188 West Randolph,
20th
Flr.
Chicago, Illinois 60601
VIII.
CEASE AI~1DDESIST
Respondent
shall cease and desist from future violations of
the Act and Board regulations, including but not limited to,
those sections of the Act and Board regulations that were the
subject matter of the complaint as outlined in Section IV.C.
of
this Stipulation and Proposal for Settlement.
8-
Ix.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation and Proposal for Settlement
in no way
affects Respondent’
responsibility to comply with any federal
state or local regulations,
including but not limited to the Act
and Board regulations.
x.
RELEASE FROM LIABILITY
In consideration of the Respondent’s payment as described in
paragraph VII.2.
above,
and the Respondent’s commitment to
refrain from future violations of the Act and Board regulations,
Complainant releases, waives and discharges the Respondent from
any further liability or penalties for violations of the Act and
regulations which were the subject matter of the Complaint
herein, upon the payment of all monies owed.
The release set
forth above does not extend to any matters other than those
expressly specified in Complainant’s Complaint filed on February
26,
2003.
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
-9-
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
3.26 of the Act, 415 ILCS 5/3.26, or entity other than the
Respondent.
WHEREFORE,
Complainant
and
Respondent
request
that
the
Board
adopt
and
accept
the
foregoing
Stipulation
and•
Proposal
for
Settlement
as
written.
-10-
4uI—Z32~Q~
at:~bprT
~r~Hi—IL
~.I Ut~1~T r~AL.
‘4l~~4~Q~U
IU~
r.Vi~/vi~
AGREED:
FOR THE COMPLAINANT:
ROBERT HAMM
LISA
MADIGAN
~.
~
Ak.
Attorney General of
the State of IlliflojE
‘
r,~
/
•f
~
Dated:_________
Matthew
J.
Duirn,
Chief
1
Erwironmental Enforc~ment/
Asbestos Litigation
Division
R0S~ARIE
CAZEAU,
Chief
~nvironmer~ta1
Bureau
A~i~tantAt orriey Gerteral
Dated:___________
ILLINOIS ~NVIRONNENTAL
ION
ArN.
•OSEPH B:
S OBODA
Chief L ~a1 Courael
Dated:
-
~
~
-11-