BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
VILLAGE OF SIMS, an
Illinois
municipal
corporation;
FOLLOWELL
CONSTRUCTION
COMPANY, INC.,
an
Illinois corporation;
and
LAMAC
ENGINEERING COMPANY,
an Illinois corporation,
JUN
1
2
?0Q3
NOTICE OF FILING
To:
Mr.
Jay H.
Fyie,
Esq.
Fyie & Hawkins
Attorneys for the Village of Sims
Box 279
115 Northeast Third
Street
Fairfield,
IL 62837-0279
Mr.
Richard
L.
Kline,
Esq.
Attorney for Lamac Engineering Co.
120
E.
Fifth
Street
P.O.
Box Drawer400
Mt.
Carmel,
IL 62863-0400
Mr.
John
S.
Brewster,
Esq.
Winters,
Brewster, Crosby
& Schafer
Attorneys for Followell Construction
Company,
Inc.
111
West
Main,
P.O.
Box 700
Marion,
IL 62959
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 WITH
THE VILLAGE OF SIMS, 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
500 South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
June
9,
2003
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:
C
~
JANE
E.
McBRIDE
Assistant Attorney General
Environmental Bureau
PEOPLE OF THE STATE OF
ILLINOIS,
Complainant,
vs.
)
)
)
)
)
)
PCB No.
03-224
)
(Enforcement)
STATE OF ILLINOIS
Po//ut,0~
Con trot Board
)
)
)
)
)
)
)
Respondent.
CERTIFICATE
OF SERVICE
I hereby certify that
I
did
on June
9,
2003,
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 WITH THE
VILLAGE OF SIMS
To:
Mr.
Richard L.
Kline,
Esq.
Attorney for Lamac Engineering
Co.
120
E.
Fifth Street
P.O.
Box Drawer 400
Mt.
Carmel,
IL 62863-0400
Mr.
Jay
H.
Fyie,
Esq.
Fyie
& Hawkins
Attorneys for the Village of Sims
Box 279
115
Northeast Third
Street
Fairfield,
IL 62837-0279
Mr.
John
S.
Brewster,
Esq.
Winters,
Brewster,
Crosby
& Schafer
Attorneys for Followell Construction Company,
Inc.
111
West Main,
P.O.
Box 700
Marion,
IL 62959
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
State of Illinois
Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois
60601
‘~
1,’1~aneE.
McBride
Assistant Attorney General
This filing is submitted
on
recycled paper
4.
Complainant and
Respondent Village of Sims 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).
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:
.~iI
~?—~
~JANE
E.
McBRIDE
Environmental Bureau
Assistant Attorney General
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
~Z~/’o-~
I,
2
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
C~VED
CLERi’~ OFFICE
PEOPLE OF THE STATE OF
)
JUN
1
~
2
ILLINOIS,
)
-
003
)
STATE OF
ILLINOIS
Complainant,
)
Pollution
ControlBoard
v.
)
PCB
No. O~
)
(Enforcement)
VILLAGE OF SIMS, an Illinois
)
municipal
corporation; FOLLOWELL
)
CONSTRUCTION COMPANY, INC.,
)
an
Illinois corporation; and
)
LAMAC ENGINEERING
COMPANY,
)
an Illinois corporation,
)
Respondents.
)
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH THE VILLAGE OF SIMS
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 (“Illinois
EPA”), and
the Respondent VILLAGE OF SIMS do
hereby
submit this Stipulation
and
Proposal for Settlement.
The parties stipulate 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 on
those issues for which a settlement is
proposed.
The parties agree that the purpose of this Stipulation and
Proposal
for Settlement
is
to resolve Complainant’s
claims against Respondent Village of Sims as set forth
in the pending
Complaint.
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 hereof by the parties to
this agreement.
Notwithstanding the previous sentence, this Stipulation and
Proposal for Settlement or the
Illinois
Pollution
Control Board
(“Board”) Order accepting
same may be used
in
any future
enforcement action as evidence of a past adjudication of violations, as provided
in Sections
(
39(i)
and 42(h) of the Illinois Environmental Protection Act (“Act”), 415
ILCS 5/39(i) and 42(h)
(2002).
This agreement shall be
null and void
unless the Board approves
and
disposes of this
matter on
each and
every one of the terms and conditions of the settlement set forth herein.
JURISDICTION
The Board
has jurisdiction of the subject matter herein
and
of the parties consenting
hereto pursuant to
the Illinois
Environmental Protection Act, 415
ILCS
5/1
et seq.
(2002).
The
Complaint states a cause of action upon which relief may be granted.
II.
AUTHORIZATION
The authorized
representatives for each signatory to this Stipulation
and
Proposal for
Settlement 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 that
party to
it.
III.
APPLICABILITY
This Stipulation and
Proposal for Settlement shall apply to and
be binding upon the
Complainant
and
Respondent Village of Sims,
as well as the successors and assigns of
Respondent Village of Sims
and any of its officers,
directors, agents, employees or servants.
Respondent Village of Sims shall not raise as a defense to any action
undertaken
to enforce
the terms and
conditions of this Stipulation and Proposal for
Settlement or the Board Order
approving
it, the failure of its officers,
directors,
agents, employees or servants
to take such
action as shall be required
to comply with the provisions of this Stipulation
and Proposal for
Settlement.
2
IV.
STATEMENT
OF FACTS
Pursuant to the requirements
of
35111. Adm.
Code
103.302, the parties submit the
following stipulation of facts
pertaining to the
nature,
extent,
and
causes of the violations and
the nature of Respondents’ operations and
control
equipment.
1.
The Complaint and this Stipulation and
Proposal for Settlement are brought
pursuant to the statutory authority of the Attorney General
to prosecute
civil actions
to obtain
civil penalties for violations of the Act, 415 ILCS
5/1
et seq. (2000),
and
at the request of the
Illinois Environmental Protection
Agency.
2.
Respondent Village of Sims (hereinafter, the “Village”)
is an
Illinois municipal
corporation located
in the county of Wayne.
3.
Respondent Followell Construction Company,
Inc.
is an Illinois corporation
in
good standing, located in
Marion, Williamson County,
Illinois.
Its registered agent is Ben
Followell,
104 Water Tower Road, P0 Box 756, Marion,
IL 62959.
4.
Respondent Lamac Engineering Company is an
Illinois
corporation
in good
standing, located
in
Mount Carmel,
Wabash County,
Illinois.
Its registered agent is Richard
L.
Kline,
120
E.
5th
Street,
Mount Carmel,
IL 62863-2120.
5.
Respondent Village owns
and operates a public water supply serving its
residents.
6.
Respondent Village’s public water supply serves approximately 421
consumers
through
161
direct connections.
The Village obtains water from the Wayne City Public Water
Supply by way of a booster
station,
located at the Wayne City Water Treatment Plant.
7.
On or about April
14,
1997,
the Illinois
EPA issued Construction
Permit No.
I 204-FY
1997 to the Village for the installation of new water main
in
the Village.
On
or about
3
March
19,
1999, the Illinois EPA issued an
operating
permit to the Village for the new water
main.
8.
The Village
employed
Lamac Engineering
Company to perform
certain design
work on the water main project.
9.
Respondent Lamac Engineering
Company prepared
plans and specifications for
the water main
project.
10.
The Village employed
Followell Construction Company,
Inc. to construct the
water main project.
II.
As owner of the water mains,
Respondent Village
had direct responsibility for
supervising the water main project.
12.
On
January II,
2000,
a representative of the Village
contacted the
Marion
Regional Office
of the Illinois
EPA, and
stated that
Followell Construction
installed a water main
that was
not properly separated from the Village’s sewer system
and that the contractor was
refusing to confirm that the systems were properly separated.
13.
On January
11,
2000,
a representative of the Illinois
EPA directed the Village to
expose the water main to determine
its distance from the sewer system,
and to relocate the
water main
if it was within ten feet horizontal distance or eighteen
inches vertical distance from
the sewer system.
14.
On February
1,
2000,
a representative of Lamac
Engineering contacted the
Illinois EPA and
stated that he was
not aware of the location of the sewer system and did
not
know whether it was separated from the Village’s public water system.
15.
On
February
1,
2000,
a representative of the Village contacted
the Illinois EPA
and stated that the Village had exposed the water main
near Lift
Station
No.
3 and found a
distance of four feet of horizontal distance between the water main and the manhole, six feet of
horizontal
distance between the water main and the lift station,
and
eight inches of vertical
4
distance between the sewer main where the water main
crossed
it.
16.
On
February 2, 2000,
representatives of the Illinois
EPA,
the Village and
Lamac
Engineering visited the site of Lift
Station No.
3 on the sewer collection
system,
located on the
west side of County Highway 900E at the intersection of Richardson Street.
The
Illinois EPA
inspector confirmed the failure to
provide adequate separation, and also observed that the
water main
and sewer
main appeared to lack adequate separation a distance of one half to one
quarter mile from the lift station.
The inspector advised the Village to expose
the lines leading
away from the lift
station to determine whether they were properly separated.
17.
•At the time of the January 11,
2000,
and
February
1
and
2, 2000,
discussions
between a representative of the Illinois EPA and
Respondents,
it was
determined
that
Respondent Lamac
Engineering had
released at least three different versions of the plans
prepared for this project.
Each set differed
and the three sets were
not in
agreement as
to
significant specific features on the system.
One or more set of these plans were utilized
by
Respondent Followell at the job site as construction plans.
18.
On
August 9,2000, representatives
of the Illinois EPA, the Village,
Lamac
Engineering, and
Followell Construction met at the site and
discussed the various areas
throughout the project requiring correction.
19.
Respondents
Lamac and
Followell claim that
Respondent Village was
responsible for providing as-built plans showing the location of existing sewer system prior to
installation
but never did so,
and further claim that the Village still
had
not supplied such plans
as of August 9, 2000.
If this claim is taken as true,
knowing that the as-built plans were not
available, Respondents
Lamac and
Followell proceeded with the installation without adequate
information to assure compliance with the Act and the Board’s public water supplies
rules.
20.
On
April I 8, 2001,
the parties completed work to
correct the separation
distances.
During the relocation
of the water main,
the Illinois
EPA inspector noted the
5
following violations
and corrective
actions:
a.
At Lift Station
No.
3 on thesewer collection
system,
the water main was
cut on the west side of County Highway 900E, where
it crossed under the
gravity sewer line.
The contractor relocated the water main twenty-five
feet to the south of the
lift station.
b.
At a location in
proximity to the Borah
residence, the water main was
cased and
placed greater than
eighteen inches below the sewer service
connection.
c.
On Robinson Street, the contractor cased
and installed the water main on
the south side of the street, locating
it greater than eighteen
inches under
each sewer service connection.
The contractor reconnected the water
main at the north side of the street greater than ten feet from the sewer
manhole.
d.
On Moyer Street,
the contractor relocated the water main and hydrant
more than twenty-five feet to
the west of Lift Station
No.
5 on the sewer
collection
system.
The contractor also relocated the water service
line
and meter.
e.
At Lift Station
No. I
on the sewer collection system,
the contractor
relocated the water main
twenty-five feet from the lift
station.
21.
By
causing or allowing
installation of new water main
in
a manner so that the
installation did
not meet the horizontal and vertical
separation distances required
by the EPA’s
Public Water
Supplies rules,
Respondent Village
has violated
Sections
1 8(a)(I),
(2) and
(3) of
the Act, 415
ILCS 5/18(a)(1),
(2), (3)
(2000),
35
III. Adm.
Code 601.101(b), and
35
III. Adm.
Code 607.104(b).
22.
By failing
to
comply with
the conditions of its Construction
Permit #1 204-FYi 997,
Respondent Village has violated Section
15
of the Act, 415
ILCS 5/15
(2000),
and 35
III. Adm.
Code 602.101(b).
V.
FUTURE PLANS OF COMPLIANCE
The Respondent Village of Sims shall diligently conform to the Act, 415
ILCS 5/I
et seq.
6
(2002),
and the Board’s regulations, 35
III. Adm~
Code,
Subtitles A through
H.
VI.
IMPACT ON
THE PUBLIC RESULTING
FROM NONCOMPLIANCE
Section
33(c) of the Act, 415
ILCS 5/33(c) (2002),
provides:
c.
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:
i.
the character and degree of injury to, or interference with
the protection
of the
health,
general welfare and physical
property of the people;
ii.
the social and
economic value of the pollution source;
iii.
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;
iv.
the technical
practicability and
economic reasonableness
of reducing or eliminating the emissions, discharges or
deposits resulting from such
pollution source;
and
v.
any
subsequent compliance.
In response to these factors, the parties
incorporate by reference the Statement of Facts
and
also state as follows:
1.
The injury to or interference with
the health,
general welfare and physical
property
of the people would
be characterized as having the potential for contaminating the
public water supply of the Village of Sims and
negatively impacting
public health
by potentially
causing disease.
The degree
of injury would
be potentially severe.
2.
If
installed with
the proper separation distance,
the water and
sewer line
project
at issue is of social
and
economic benefit to the Village of
Sims.
3.
The water and
sewer lines,
if installed with the proper separation
distance,
are
7
located
in a suitable site for such
lines and the site has
been found
suitable
by the Illinois
EPA
for such
use.
4.
Compliance with the Act and Board
regulations is technically practicable and
economically reasonable.
5.
The project has
been
reconstructed
to bring
it into
compliance with the Act and
applicable regulations.
VII.
COMPLIANCE WITH
OTHER LAWS AND REGULATIONS
This Stipulation
and
Proposal for Settlement
in
no way affects the responsibility of
Respondent Village of Sims to comply with any federal,
state, or local laws or regulations,
including
but not limited to the Act, 415
ILCS 5/I
et
seq.
(2002),
and
the Board’s rules and
regulations,
35
III. Adm.
Code,
Subtitles A through
H.
VIII.
DETERMINATION OF APPROPRIATE CIVIL PENALTY
Section 42(h)
of the Act, 415
ILCS 5/42(h)
(2002), provides:
***
h.
In determining the appropriate civil penalty to be
imposed under
subdivisions
(a), (b)(i), (b)(2), (b)(3) or (b)(5) 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;
8
(4)
the amount of monetary penalty which will serve to
deter furtherviolations
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.
In response
to these factors, the parties incorporate
by reference the Statement of Facts
and
also state
as follows:
I.
The alleged violations
required reconstruction of portions of the project, resulting
in
expenditure of approximately seven thousand five hundred
dollars ($7,500.00) by
Respondent
Followell
more than was
initially contemplated.
2.
Reconstruction has corrected
the project so as to
return it to
compliance.
3.
Respondents
realized no economic
benefit from noncompliance.
4.
Complainant has
determined,
in this instance,
that a penalty of five hundred
dollars ($500.00) will serve to deter future violations
and aid
in future voluntary enforcement of
the Act and
applicable
Board rules and
regulations.
5.
Complainant
has also determined that Respondent Village of Sims
has no known
history of prior adjudicated violations.
IX.
NONADMISSION
OF LIABILITY
This Stipulation and
Proposal for Settlement is entered into for the purpose of settling
and
compromising disputed claims without the expense of contested
litigation.
By entering
into
this Stipulation and Proposal for
Settlement and complying
with
its terms,
Village of Sims,
does
not affirmatively admit the allegations of violation within the Complaint, and
this Stipulation and
Proposal
for Settlement shall not be
interpreted as including such
admission.
9
X.
PROPOSAL FOR SETTLEMENT
I.
Respondent Village
of Sims shall pay a penalty of five hundred
dollars
($500.00),
within thirty (30) days
of the Board’s Order approving
this Stipulation and
Proposal for
Settlement.
Payment shall be
by certified check
made payable to,
“Illinois
Environmental
Protection Agency, for deposit into the Environmental Protection
Trust Fund,” and shall
be
submitted to:
Illinois
Environmental Protection
Agency
Fiscal
Services
Section
1021
North Grand
Avenue East
Post Office Box 19276
Springfield,
Illinois
62794-9276
The name,
number of the case, and
the Respondent’s Federal
Employer Identification
Number (“FEIN”) shall appear on the check.
Respondent Village of Sim’s
FEIN is 37-6084288.
A copy of the check and
payment transmittal shall be simultaneously
submitted to:
Donna
Lutes
Illinois
Attorney General’s Office
Environmental Bureau
500 South Second Street
Springfield,
Illinois
62706
2.
In the event the penalty is not paid
in a timely fashion,
interest shall accrue and
be
paid by Respondent Village of Sims at the rate set
forth
in Section
1003(a) of the
Illinois
Income Tax Act,
35
ILCS 5/1003(a)
(2000),
pursuant to
Section 42(g)
of the Act, 415 ILCS
5/42(g) (2000).
3.
If Respondent Village of Sims fails to
comply with
any material
requirement set
forth
in
this Stipulation
and
Proposal for Settlement, Respondent Village
of Sims shall pay
in
liquidated
penalties the sum of five hundred dollars
($500.00)
per month of noncompliance, until
such time as the requirements are complied with, said
penalty to be
paid to
the Environmental
10
Protection Trust
Fund in the manner provided above.
-
4.
Respondent Village
of Sims shall cease and desist from future violations of any
federal,
state, or local environmental statutes and
regulations, including, but not limited to, the
Act, 415
ILCS 5/1
etseq.
(2002),
and the
Board’s rules and
regulations,
35
III.
Adm.
Code,
Subtitles A through
H.
Xl.
ABATEMENT OF VIOLATIONS
This Stipulation and
Proposal for Settlement, upon
its adoption by the
Board,
constitutes
an order to abate violations of the Act and regulations thereunder.
XII.
RELEASE
FROM
LIABILITY
The Complainant shall release, waive and discharge
Respondent Village of Sims from
any further liability or penalties for violations of the Act and
Board
regulations which were
specifically the subject matter of the Complaint
herein, upon receipt
by Complainant of the
payment required
in
Section
lX.1.,
and
upon compliance with the terms
of this Stipulation and
Proposal for Settlement.
However,
nothing
in this Stipulation and
Proposal for Settlement shall
be construed as a waiver by Complainant of the right to
redress future violations or obtain
penalties
with respect thereto, nor shall anything
contained
herein constitute a waiver
by
Respondent to contest and
defend any and all alleged future violations or penalties.
11
WHEREFORE, Complainant and
Respondent Village of Sims request that the Board
adopt and
accept the foregoing Stipulation and
Proposal for Settlement as written.
AGREED:
FOR THE COMPLAINANT:
LISA MADIGAN
Attorney General of the State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY: ___________________________
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
DATED:
~
(o
5~/ô~
lLLl1~SENVIRON
L PROTECTION AGENCY
BY:________
/JØSEPH’~.SVOBODA
(..-‘~hief
Legal Counsel
DATED:______________
‘I
/
FOR THE RESPONDENT:
2~w
~‘
Mayor
VILLAGE OF SIMS
DATED:
~-~9-ô3
~
12
