RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois
)
Complainant,
)
PCB No. 03-190
(Enforcement)
vs.
VILLAGE OF CHERRY VALLEY, an
Illinois municipal corporation,
Respondent.
NOTICE OF FILING
TO: Mr. James e. Stevens
Village of Cherry Valley
Attorney for Respondent
do Stephen Appell
Barrick, Switzer, Long,
Village President
Baisley & Van Evera
202 East State
P.O. Box 17109
Cherry Valley, Illinois 61016
Rockford, Illinois 61110-7109
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that the Plaintiff, PEOPLE OF THE STATE
OF ILLINOIS, filed with the Pollution Control Board, its AGREED
MOTION TO REQUEST RELIEF FROM THE HEARING REQUIREMENT and
STIPULATION AND PROPOSAL FOR SETTLEMENT, true and correct copies
of which are attached hereto and are hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois
BY:
THERINE A. KELLY
4.
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Chicago, IL 60601
(312) 814-3153
SEP 2 4 2003
STATE
OF ILLINOIS
Pollution Control Board
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~ECE1VEDCr
F~S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS
)
SEP
2
4 2003
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois
)
SlATE
OFILLINOIS
Pollution Control Board
Complainant,
)
PCB No. 03-190
(Enforcement)
vs.
VILLAGE OF CHERRY VALLEY, an
fllinois municipal corporation,
Respondent.
AGREED MOTION TO REQUEST RELIEF FROM THE HEARING REQUIREMENT
In support of this Motion, the parties state as follows:
1. Today, the People of the State of Illinois, filed a
Stipulation and Proposal for Settlement, with the Illinois
Pollution Control Board.
2. Section 31(c) (2) of the Illinois Environmental
Protection Act (“Act”), 415 ILCS 5/31(c) (2) (2.002) 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 subdi~rision (1)
3. Complainant and Respondent agree that a formal hearing
is not necessary to conclude this matter and wish to avail
themselves of Section 31(c) (2) of the Act, 415 ILCS
5/31(c) (2) (2002)
WHEREFORE, Complainant and Respondent request relief from
the hearing requirement pursuant to Section 31(c) (2) of the Act.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney Gei~era1
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement
/
Asbestos Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
________________
KAT ERINE A. KELLY
Assistant Attorney General
Environmental Bureau
188 West Randolph St., Suite 2001
Chicago, IL 60601
(312) 814-3153
DATE:
September 24, 2003
RECE~VE1D
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS
)
SEP 2 4 2003
ex
rel. LISA MADIGAN, Attorney
)
STATE
OF ILLINOIS
General of the State of Illinois
)
Pollution Control Board
Complainant,
)
PCB No. 03-190
vs.
VILLAGE OF CHERRY VALLEY, an
Illinois municipal corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, ex rei. LISA
MADIGAN, Attorney General of the State of Illinois, the Illinois
Environmental Protection Agency (“Illinois EPA”), and Respondent,
VILLAGE OF CHERRY VALLEY (“Cherry Valley”), an Illinois municipal
corporation, have agreed to the making of this Stipulation and
submit it to the Illinois Pollution Control Board (“Board”) for
approval. 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 trial
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 any other proceeding regarding the
claims asserted in the Complaint except as otherwise provided
1
herein. If the Board approves and enters this Stipulation,
Respondent agrees to be bound by the Stipulation and not to
contest its validity in any subsequent proceeding to implement or
enforce its terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and
off the parties consenting hereto pursuant to the Illinois
Environmental Protection Act (“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 to
legally bind them to it.
III.
STATEMENT OF •FACTS
A. Parties
1. On April 15, 2003, 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(2002), against the Respondent.
2. The Illinois EPA is an administrative agency of the
2
State of Illinois, created pursuant to Section 4 of the Act, 415
ILCS 5/4 (2002)
3. At all times relevant to the Complaint, Respondent,
Cherry Valley, has been an Illinois municipal corporation doing
business in the State of Illinois.
B.
Site Description
1. At all times relevant to this complaint, Defendant
owned and operated a public water supply (“PWS” or “facility”),
which provides water to 5000 consumers through 1597 direct
connections in the Village of Cherry Valley, Winnebago County,
Illinois. Cherry Valley obtains its water from three wells. The
water is treated with phosphate, fluoride, and chlorine prior to
discharge to two elevated storage tanks and the distribution
system.
2. On February 28, 2001, the Village of Cherry Valley
applied for a construction permit for proposed modification to
the Village’s Well No. 3 in its facility. On May 8, 2001, the
Illinois EPA sent a letter to the Village and its engineering
firm, requesting revisions to this permit application.
3. On June 27, 2001, the Illinois EPA’s Rockford Regional
Office received laboratory results from the Winnebago County
Laboratory for samples taken after modifications to Well No. 3
were made at the Village of Cherry Valley facility. An Illinois
EPA representative subsequently contacted the Village and
3
confirmed that the Village had completed the modifications to
Well No. 3 before the proper Illinois EPA permit was issued.
4. On July 13, 2001, the Village submitted “As-Built”
plans and specifications for the proposed modifications,
admitting that the Village had already completed the work
proposed in the original permit application dated February 28,
2001.
C. Allecations of Non-Compliance
1. Complainant contends that the Respondent has violated
the following provisions of the Act and Board Public Water Supply
Regulations:
Count I: Failure to Secure Permit For Construction to
Public Water Supply
Violation of Section 15 of the Act, 415 ILCS
5/15(2002)and Sections 602.101 and 602.102 of the Board
Regulations, 35 Ill. Adm. Code 602.101 and
602.102(2002).
D. Admission of Violations
The Respondent admits to the violations alleged in the
Complaint filed in this matter and referenced herein, and that
same were wilful and knowing.
E. Compliance Activities to Date
Infratek Consultants on behalf of the Village of Cherry
Valley drafted and submitted As-Built Plans and Specifications
for the modifications to Well No. 3 on July 13, 2001, and
bacteriological sample results on July 27, 2001. The Illinois
EPA issued As-Built Permit #l712-FY2001 on July 30, 2001. The
4
Vi1lag~of Cherry Valley Water Department staff performed all of
of the water system work at the facility.
IV.
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
5. any subsequent compliance.
In response to these factors, the parties state:
1. Impact to the public resulting from Cherry Valley’s
noncompliance was that harm to human health and the environment
was threatened due to Cherry Valley’s compromise of the safety of
the drinking water supply it provides to its community.
5
2. The parties agree that Cherry Valley’s facility is of
social and economic benefit.
3. The facility is suitable to the area in which it is
located.
4. Complying with the requirements of the Act and the
Board Regulations is both technically practicable and
economically
.
reasonable.
5. Cherry Valley did subsequently submit As-Built Plans
and Specifications and bacteriological sample results to the
Illinois EPA, and obtained an As-Built Permit for the well
modifications.
V.
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;
6
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.
In response to these factors, the parties state:
1. The duration of the violations occurred continuously
from June 25, 2001 to July 30, 2001.
2. Cherry Valley demonstrated a lack of diligence by
failing to obtain the required Illinois EPA permits before
constructing and operating the additions to its public water
supply, but did diligently submit As-Built plans and
specifications at the request of the Illinois EPA.
3. The economic benefit of noncompliance is difficult to
determine due to the nature of the violations described herein.
4. Complainant has determined, in this instance, that a
penalty of Three Thousand Dollars ($3,000.00) will serve to deter
further violations and aid in future voluntary compliance with
the Act and Board Public Water Supply regulations.
5. Respondent has no known previously adjudicated
violations of the Act.
.
.
VI.
APPLICABILITY
A. This Stipulation shall apply to and be binding upon the
7
Complainant and the Respondent, 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, or employees to take such actions as shall be required to
comply with the provisions of this Stipulation.
B. No change in ownership, corporate status or operator of the
facility shall in any way alter the responsibilities of the
Respondent under this Stipulation. In the event of any
conveyance of title, easement or other interest in the facility,
the Respondent shall continue to be bound by and remain liable
for performance of all obligations under this Stipulation. In
appropriate circumstances, however, the Respondent and a
contemplated future owner or operator of the facility may jointly
request, and the Complainant, in its discretion, may consider
modification of this Stipulation to obligate the proposed
purchaser or operator to carry out future requirements of this
Stipulation in place of, or in addition to, the Respondent.
VII.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
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
8
the Board Regulations, 35 Ill. Adm. Code, Subtitles A through H.
VIII.
TERMS OF SETTLEMENT
A. Penalty
1. a. The Respondent shall pay a civil penalty of Three
Thousand Dollars ($3,000.00) within thirty (30) days after the
date on which the Board adopts a final order approving this
Stipulation. Payment shall be made as follows:
b. Payment shall be made by certified check or money
order, payable to the Illinois EPA for deposit into the
Environmental Protection Trust Fund (“EPTF”) and 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
c. The name, case number, and the Respondent’s
Federal Employer Identification Number (“FEIN”), 36-6009435,
shall appear on the face of the certified check or money order.
A copy of the certified check or money order and the transmittal
letter shall be sent to:
Katherine A. Kelly (or other designee)
Assistant Attorney General
Environmental Bureau
188 West Randolph, 20th Floor
Chicago, Illinois 60601
(312) 814-3153
3. For purposes of payment and collection, the
9
Respondent’s attorney may be reached at the following address:
James E. Stevens
Barrick, Switzer, Long, Balsley & Van Evera
P.O. Box 17109
Rockford, Illinois 61110-7109
4. For purposesof payment and collection, Respondent may
be reached at the following address:
Village of Cherry Valley
c/o Stephen Appell
Village President
202 East State Street.
Cherry Valley, Illinois 61016
5. In the event of default, the Complainant shall be
entitled to reasonable costs of collection, including reasonable
attorney’s fees.
B. Interest on Penalties
1. Pursuant to Section 42 (g) of the Act, 415 ILCS 5/42
(g)
(2002),
interest shall accrue on any penalty amount owed by
the Respondent not paid within the time prescribed herein, at the
maximum rate allowable under Section 1003 (a) of the Illinois
Income Tax Act, 35 ILCS 5/1003 (a) (2002)
2. Interest on unpaid penalties shall begin to accrue from
the date the penalty is due and continue to accrue to the date
payment is received by the Illinois EPA.
3. 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.
4. All interest on penalties owed the Complainant shall be
10
paid by certified check or money order payable to the Illinois
EPA for deposit in the EPTF at the above-indicated address.
.
The
name, case number, and the Respondent’s FEIN shall appear on the
face of the certified check or money order.
.
A copy of the
certified check or money order and the transmittal letter shall
be sent to:
Katherine A. Kelly (or other designee)
Assistant Attorney General
Environmental Bureau
188 West Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-3153
C. Future Use
Notwithstanding any other language in this Stipulation to
the contrary, this Stipulation may be used against .the Respondent
in any subsequent enforcement action as evidence of a past
adjudication of violation of the Act and the Board Regulations
promulgated thereunder, for purposes of Section 39 (i) and/or 42
(h) of the Act, 414 ILCS 5/39 (i) and/or 5/42 (h) (2002)
D. RicTht of
Entry
In addition to any other authority, the Illinois EPA, its
employees and representatives, and the Attorney General, her
agents 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 carrying
out inspections. In conducting such inspections, the Illinois
EPA, its employees and representatives, and the Attorney General,
11~
her employees and representatives may take photographs, samples,
and collect information, as they deem necessary.
E.
Cease and Desist
The 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 III.C. of
this Stipulation.
F. Release from Liability
In consideration of the Respondent’s payment of a $3,000.00
penalty, the Complainant releases, waives and discharges the
Respondent from any further liability or penalties for 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 rnother than those expressly specified in
Complainant’s Complaint filed on April 15, 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
12
the alleged violations; and
d. liability or claims based on the Respondent’s failure
to satisfy the requirements of this Stipulation Agreement.
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 (2002), or entity other than the
Respondent.
C. Retention of Jurisdiction
The Board shall retain jurisdiction of this matter for the
purpose of interpreting and enforcing the terms and conditions of
the Stipulation.
H. Enforcement
of Stipulation
1. Upon the entry of this Stipulation, any party hereto,
upon motion, may reinstate these proceedings solely for the
purpose of enforcing the terms and conditions of this
Stipulation. This Stipulation is a binding and enforceable order
of the Board and may be enforced by the Illinois Circuit Court
through any and all available means.
2. Respondent agrees that notice of any subsequent
proceeding to enforce this Stipulation may be made by mail and
waives any requirement of service of process.
13
WHEREFORE, the parties, by their representatives, enter into
this Stipulation and submit it to the Board that it may be
approved and entered.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
ex
rel.
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcernent/
ROSosLitigationH AZEAU,-~C~visione
Environmenta Bur~ti
Assistant Attorney General
DATE:
________
FOR THE RESPONDENT:
THE VIL~~OF,11~RY VALLEY
BY:
It
______________________
ILLINOIS ENVIRONMENTAL
CTION AGENCY
)BODA
ef Legal Counsel
JUDGE
ENTERED:
DATE:
BY:
DATE:
f
DATE:
14
CERTIFICATE OF SERVICE
I, KATHERINE A. KELLY, an Assistant Attorney General, do
certify that I caused to be mailed this
24th
day of September,
2003, the foregoing STIPULATION AND PROPOSAL FOR SETTLEMENT and
NOTICE by first-class certified mail in a postage prepaid
envelope and depositing same with the United States Postal
Service located at 100 West Randolph Street, Chicago, Illinois,
60601.
KA HERINE A. KELLY
f~.
k
