ILLINOIS POLLUTION CONTROL BOARD

September 21,

1995

PEOPLE OF THE STATE

)

OF ILLINOIS,

Complainant,

v.

)

PCB

94—74

)

(Enforcement-Air)

GLEN FEARNEYHOUGH, d/b/a

)

BEARDSTOWN LUMBER & READY MIX,

)

Respondent.

OPINION

AND

ORDER OF THE BOARD

(by M. McFawn):

This matter comes before the Lsoara upon a one—count

complaint filed February 24,

1994,

by the Illinois Attorney

General,

on behalf of the People of the State of Illinois ‘and the

Illinois Environmental Protection Agency, against Glen

Fearneyhough, d/b/a Beardstown Lumber & Ready Mix (Fearneyhough)

located at 15th

& Bay Streets, Beardstown,

Cass County, Illinois.

The complaint alleges that Fearneyhough has violated Section

9(b)

of the Illinois Environmental Protection Act (Act),

(415

ILCS

5/9(b)) and 35 Ill. Adm. Code 201.143 and 201.146 by constructing

and operating emission sources without the proper permits.

Pursuant to 415 ILCS 5/31(a) (2), the parties filed a joint

motion requesting relief from the Act’s hearing requirement on

August 17, 1~95. The Board published

a

notice of the waiver on

August 24,

1995;

no objection to grant of the waiver was

received.

Waiver of hearing is hereby granted.

The parties filed a stipulation and settlement Agreement on

August 17,

1995.

The stipulation sets forth facts relating to

the nature, operations and circumstances surrounding the claimed

violations.

Fearneyhough admits the alleged violations and

agrees to pay a civil penalty of five hundred dollars

($500.00).

The Board finds the settlement agreement acceptable under 35

Ill.

Adm. Code 103.180.

This settlement agreement in no way

affects respondent’s responsibility to comply with any federal,

state or local regulations, including but

not

limited to the

Act

and the Board’s pollution control regulations.

This opinion constitutes the Board’s findings of fact and

conclusions of law in this matter.

---

2

ORDER

1)

The Board hereby accepts the stipulation and settlement

Agreement executed by the People of the State of

Illinois and Fearneyhough, concerning his facility

located at 15th & Bay Streets, Beardstown,

Cass County,

Illinois.

The stipulation and settlement agreement are

incorporated by reference as though fully set forth

herein.

2)

Fearneyhough, shall pay the sum of five hundred dollars

($500.00) within 30 days of the date of this order.

Such payment shall be made by certified check or money

order payable to the Treasurer of the State of

Illinois, designated to the Environmental Protection

Trust Fund,

and shall be sent by First Class mail to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

P.O. Box 19276

Springfield,

IL

62794—9276

The certified check or money order shall clearly

indicate on its face, Fearneyhough’s Federal Employer

Identification Number or Social Security Number and

that payment

is directed to the Environmental

Protection Trust Fund.

Any such penalty not paid within the time prescribed

shall incur interest at the rate set forth in

subsection

(a)

of

Section

1003

of the Illinois Income

Tax Act,

(35 ILCS 5/1003),

as now or hereafter amended,

from the date payment is due until the date payment is

received.

Interest shall not accrue during the

pendency of an appeal during which payment of the

penalty has been stayed.

3)

Fearneyhough shall cease and desist from the alleged

violations.

IT IS SO ORDERED.

Section 41 of the Environmental Protection Act

(415 ILCS

5/41) provides for the appeal of final Board orders within 35

days of the date of service of this order.

(See also 35 Ill.

Adm. Code 101.246, Motion for Reconsideration.)

---

3

I, Dorothy N. Gunn,Clerk of the Illinois Pollution Control

Board, hereby certify that the abov

opinion and order was

adopted on the

?~V-~

day of ___________________,

1995,

by a

vote of

7-c

.

4

Dorothy M.4Iunn, Clerk

Illinois léállution Control Board

---

PRECEIV~b~

BEFORE THE PLUNOIS POLLUTION CONTROL

BOAF~D

CASS

COUNTY, ILLINOIS

~

17

1995

1

STATE OF iLLINOIS

PEOPLE OF THE

STATE OF ILLINOIS,

)

!2~LJTION

CONIPOL

BOARc

Complainant,

v.

)

PCB

No.

94-74

GLEN

FEARNEYHOUGH, dibla

)

BEARDSTOWN LUMBER

& READY MIX,

)

Respondent.

)

STIPULATION AND PROPOSAL FOR

SETTLEMENT

Pursuant to

35

III. Adm.

Code

103.180

(1992),

the following

stipulation

and

proposal

for

settlement

entered into

between

the

complainant,

People

of the State of Illinois,

on behalf

of the

illinois

Environmental

Protection Agency (“Agency”), and the respondent,

Glen

Fearneyhough

(“Feameyhough),

d/b/a Beardstown

Lumber

and

Ready

Mix

is tendered

for

approval

by the

Illinois

Pollution

Control Board

(“Board”).

It

is

expressly

understood

and

agreed to by

and between Fearneyhough, James

E.

Ryan,

Attorney General ofthe

State

of

tllinois,

(“Attorney

General”)

and

the Agency that the agreements,

stipulations

and

statements

herein contained are not binding

on

the parties,

and shall

be

deemed

null

and void,

in the

event such approval

by the

Board

is not obtained,

or

in

the event additional terms or

conditions which

are unacceptable

to the parties are imposed

by the

Board.

This

stipulation

and proposal for settlement is

made

for

the purpose of settlement

only

and putting

an end to

litigation, and

neither

the fact that a

party

has entered

into this stipulation

and proposal

for

settlement,

nor any

of

the

facts

stipulated herein, shall be introduced

into

evidence

or

construed as an

admission

in any

other

proceedings except

to enforce

the terms

hereof

by

the parties to this

agreement

and as proof of past noncompliance

in

other

proceedings under

---

the

Illinois

Environmental Protection

Act

(415

ILCS

5/1-57.17 (West

1992)).

Subject

to the

foregoing

understanding

and

agreement,

it

is further agreed

as

follows:

STIPULATION

OF FACTS

1.

The respondent,

Feameyhough,

is

a

resident of Cass County.

2.

At

all

times

relevant

to

this

complaint,

Fearneyhough

has

been doing

business

as Beardstown

Lumber and

Ready Mix.

3.

In

his

business Fearneyhough

operates a

ready

mix concrete

plant.

4.

The concrete plant’s components

include a cement silo and fabric

filter.

5.

The cement silo and fabric filter were

constructed

prior to December

11,

1990.

A second

fabric filter was

installed in

1994.

8.

Fearneyhough

did

not obtain

air

pollution

operating permit for

the

concrete

plant

until

November

2,

1994.

IMPACT

ON

THE

PUBLIC RESULTING

FROM

NON-COMPLIANCE

Subsection

33(c)

of the Act (415

ILCS

5/33(c)

(West 1992)) provides:

“c.

!n making

its

orders and

determinations,

the

Board shall take

into

consideration bearing

upon

the reasonableness

of the

emissions,

discharges,

or

deposits

involving

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;

2

---

4.

the technical

practibility and

economic

reasonableness of

reducing or eliminating

the

emissions,

discharges or deposits

resulting from

such pollution

source; and

5.

any

economic

bcnefits

accruccl

by

a

noncomplying pollution

source

because

of its delay

in

compliance

with pollution

control

requirements;

and

6.

any subsequent compliance.”

In

response to these

factors,

the

parties

state as follows:

A.

Respondent’s

above-detailed alleged

violations

impacted

the Agency

and the

public,

in

that

Fearneyhough’s

failure to timely obtain

construction and

operating

permits

interfered

with the Agency’s duty to regulate

via

permit the purity

of the

air

in

this state and to

assure that

no

air contaminants

are

discharged

into

the

atmosphere

without

being given the

degree of treatment

or control necessary to

prevent

pollution.

B.

The

parties agree that Fearneyhough’s

facility

is

of economic benefit to

the

surrounding

community.

Any social benefit

is

derived

primarily from

those employed

by the

facility.

C.

The

parties agree the Fearneyhough’s

facility is suitable

to the area

in which

it

is

located,

based

on the presumption that

said

facility is

operated

in

compliance with the

Act

(415

ILCS

5/1

et

~q.

(West

1992)).

D.

The

parties agree

it

is technically

practicable

and economically reasonable

to

take

steps to

remedy the

above-detailed

violation.

E.

Fearneyhough

did

accrue an

economic benefit of at least $300.00

by

his

failure

to comply

with the Act (415

ILCS

5/1

~

(West

1992)).

F.

The

Agency

has

not obtained

any evidence

of any impact from

operation

of the

concrete

plant

on

neighbors

of the facility.

3

---

G.

The

parties agree that

after the filing of the complaint

with the

Board,

Fearneyhough

has

taken

steps

t5TeThedy the above-detailed

instance

of noncompliance.

DETERMINATION OF APPROPRIATE

CIVIL PENALTY

Subsection

42(h) of the

Act (415

ILCS 5/42(h) (West

1992)) provides:

“h.

In

determining

the appropriate

civil

penalty to be

imposed

under

subdivisions

(a),

(b)(1),

(b)(2)

or (b)(3)

of 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 the

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.”

ln

response

to

these

factors,

the parties state as follows:

A.

The

violation

lasted at

least five years.

B.

Fearneyhough

has

obtained the

necessary

permits.

C.

Fearneyhough

accrued

a

modest

economic

benefit

by his failure to comply.

D.

A

civil

penalty

of

$500.00

will deter

Fearneyhough

from

future

violations.

E.

Fearneyhough has

no

previously

adjudicated

violations of the Act.

4

---

COMPLIANCE WITH

OTHER

LAWS AND REGULATIONS

This

stipulation

and proposal for

settlement

in

no

way

affects the

responsibility

of

Fearneyhough

to

comply

with

any

other federal,

state

or local

laws

or regulations,

including,

but

not

limited

to,

the Act

(415

ILCS

5/1.

at ~q.

(West

1992))

and the

Illinois

Pollution

Control

Board’s Rules

and

Regulations, 35

III.

Adm.

Code,

Subtitles A.through

H.

V.

JURiSDICTION

The

Board

has

jurisdiction

of the

subject

matter herein and

of the parties

consenting

hereto pursuant

to

the Act.

VI.

APPLICABILITY

This

stipulation

and

proposal for settlement

shall

apply to and

be

binding upon the

complainant,

the Agency, and

Feameyhough.

Fearneyhough shall not raise

as

a defense to

any action

to

enforce

this

stipulation and proposal

for settlement the failure

of any of the

above to

take such

action as

shall

be

required

to comply with

the

provisions

of this

stipulation

and

proposal

for settlement.

PROPOSAL FOR SETTLEMENT

1.

Fearneyhough

agrees to

the

payment

of the penalty described

in

paragraph

2.

2.

Fearneyhough

shall

pay

a

civil

penalty

of five hundred

dollars

($500.00).

The

penalty

shall

be paid

by certified

check,

within

30 days of the

issuance

of the Board

order,

5

---

payable

to the Treasurer

of the

State

of

Illinois, for deposit in the

Environmental

Protection

Trust

Fund

and

submitted to:

Illinois Environmental

Protection Agency

Fiscal

Services Section

2200

Churchill

Road, P.O.

Box 19276

Springfield,

IL

62794-9276

The

name,

number of the case,

and

Feameyhough’s

Federal Employer Identification

Number

(“FEIN”)

shall appear on the

certified

check.

For the

purpose of payment

and

collection,

Fearneyhough

may

be reached at the following

address:

15th

& Bay Streets

Beardstowri,

Ii 62618

A copy

of the payment transmittal

and

check shall

be simultaneously

submitted

to:

Environmental

RLlreau

Attn:

Donna

Lutes

Illinois Attorney General’s

Office

500 South

Second Street

Springfield,

IL

62706

3.

Fearneyhough

shall cease

and desist from

any further violations of the Act

(415

ILCS

5/1, et~g.(West

1992)).

4.

Fearneyhough

admits the violations

as

alleged

in the complaint that

he

did

not

obtain construction or operatinq

permits.

6

---

WHEREFORE,

the complainant

and

respondent request that

the Board

adopt and

accept the foregoing

stipulation

and

proposal

for settlement.

Respectfully submitted,

PEOPLE OF THE

STATE OF

ILLINOIS

JAMES

E.

RYAN

State of Illinois

Attorney

General

MATTHEW

J. DUNN,

Chief

Environmental Enforcement

Division

BY:_________________________

THOMAS

DAVIS,

Acting Chief

Environmental

Bureau

Assistant Attorney General

ILLiNOIS ENVIRONMENTAL

PROTEC

A

CV

B~(,V2~-,

rJ~’

~ir~L~

7

JosepI~iE.

Svoboda

(

General

Counsel

‘.~J

Division

of Legal Counsel

GLEN FEARNEYHOUGH

BY:______

FEIN:___________________

7