BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex rd.
LISA MADIGAN, Attorney
General
of the State of Illinois
Complainant,
v.
VALLEY
RUN
STONE,
a Division of
AVERY GRAVEL CO.,
INC.,
an Illinois
Corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on October 14,
2003,
we filed with the
Illinois Pollution Control Board a Stipulation and Proposal for
Settlement and a Motion to Request Relief From Hearing Requirement,
true and correct copies of which are
attached and hereby served upon
you.
Respectfully submitted,
LISA
MADIGAN
Attorney General
State o~Illinois
BY:
Assista~ttorney~enera1
Environmental Bureau
188
W. Randolph St.,
20th Floor
Chicago,
Illinois
60601
(312)
814-3532
PCB 04-06
SERVICE LIST
Dorothy M. Gunn
Clerk of the Board
Illinois Pollution Control Board
James
R.
Thompson Center,
Ste 11-500
100 W.
Randolph Street
Chicago,
Illinois 60601
Bill
S.
Forcade
Jenner & Block
One IBM Plaza
Chicago,
Illinois 60611
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
cx rd.
LISA
MADIGAN,
Attorney General)
of the State of Illinois,
Complainant,
)
PCB 04-06
v.
)
(Enforcement
-
VALLEY
RUN
STONE,
a Division of
AVERY GRAVEL CO.,
INC.
an Illinois Corporation,
Respondent.
STIPULATION AND PROPOSAL
FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN,
Attorney General of the State of Illinois,
on her own motion, and at
the request of the Illinois Environmental Protection Agency
(“Illinois
EPA”), and Respondent, VALLEY
RUN
STONE,
a Division of AVERY GRAVEL
CO.,
INC.
(“VRS”),
do hereby submit this Stipulation and Proposal for
Settlement.
The parties agree that the Complainant’s statement of
facts contained herein is agreed to only for the purposes of
settlement.
The parties further state that neither the fact that a
party has entered into this stipulation, nor any of the facts
stipulated herein,
shall be admissible into evidence,
or used for any
purpose 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,
and
any Illinois Pollution Control Board
(“Board”) order accepting
same,
may be used as evidence of a past adjudicated violation of the Act as
alleged herein, pursuant to Section 42(h)
of the Illinois
Environmental Protection Act
(“Act”),
415 ILCS 5/42(h) (2002),
in
1
•determining appropriate civil penalties for any future violations
of
the Act.
This Stipulation may also be used in any permitting action
for the purposes of Section 39(1)
of the Act,
415 ILCS 5/39(i) (2002).
This Stipulation and Proposal for Settlement 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.
I.
JflRISDICTION
The Board has jurisdiction of the stthject 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 VRS,
and any officer,
agent,
employee or servant of VRS,
as well as the VRS’s successors and
2
assigns.
VRS shall not raise as a defense to any enforcement action
taken pursuant to this settlement the failure of its officers,
directors,
agents,
servants or employees to take such action as shall
be required to comply with the provisions
of this settlement.
IV.
STATEMENT OF FACTS
1.
The Illinois EPA is an administrative 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.
2.
Respondent VRS,
at all times relevant to the Complaint in
this matter, was and is an Illinois corporation in good standing.
3.
Respondent VRS,
at all times relevant to the Complaint in
this matter, has owned and operated a facility located at 10425 Joliet
Road,
Lisbon,
Kendall County,
Illinois (“facility”)
V.
VIOLATIONS
The Complaint alleges the following violations:
Count
I:
FAILURE TO OBTAIN•A CONSTRUCTION PERMIT BEFORE CONSTRUCTING
EQUIPMENT CAPABLE OF CAUSING OR CONTRIBUTING TO AIR POLLUTION
violation of 415 ILCS 5/9(b) (2002)
and 35
Ill. Adm.
Code 201.142.
Respondent failed to obtain a construction permit from the Illinois
EPA before constructing a new emission source.
3
Count
II:
FAILURE TO COMPLY WITH PRECONSTRUCTION PREVENTION OF
SIGNIFICANT DETERIORATION STANDARDS
violation of Section 9.1(d)
of
the Act,
415 ILCS 5/9.1(d) (2002),
and Sections 52.21(i) (1),
52.21(k),
52.21(m),
and 52.21(n)
of the Code of Federal
Regulations,
40 C.F.R.
52.21(i),
(1),
(k),
(m) and
(n).
Respondent
failed to comply with applicable requirements of the Prevention of
Significant Deterioration program prior to construction and operation
of an emission source subject to those requirements.
Count
III: FAILURE TO OBTAIN
AN OPERATING PERNIT violation of
Section 9(b)of the Act,
415 ILCS 5/9(b) (2002),
and 35
Ill.
Adm.
Code 201.143.
Respondent failed to obtain an operating permit before
operating a new emission source.
Count
IV: FAILURE TO OBTAIN A CLEAN AIR ACT PERMIT; violation of 415
ILCS 5/39.5(6) (b) (2002)
.
Respondent operated a new
CAAPP
source
without obtaining
a
CAAPP
permit.
VI.
NATURE OF RESPONDENT’S OPERATIONS
Respondent operates
a quarry.
The Respondent installed a natural
gas-fired power generation engine at the facility toprovide power
during periods of peak power usage.
4
•
VII.
EXPLANATION OF PAST FAILURES TO COMPLY
1.
Respondent submitted a permit application to the Illinois
EPA in July 2000 for a natural gas-fired power generation engine.
The
Illinois EPA issued a notice of incompleteness to the Respondent dated
August
21,
2000.
2.
The Respondent did not respond to the notice of
incompleteness and subsequently constructed and operated the natural
gas-fired power generation engine.
3.
The Illinois EPA issued a violation notice to the Respondent
dated August 30,
2002.
The Respondent did not respond to the violation
notice,
but did cease operation of the engine in August 2002 and has
not operated the engine since that time.
4.
VRS
did subsequently respond to the issuance of
a notice of
intent to pursue legal action issued November
6,
2002.
VRS also
submitted an application for a permit to the Illinois EPA in November
2002.
That application is currently under Illinois
EPA review.
VIII.
FUTURE PLANS OF COMPLIANCE
VRS shall comply with all requirements
of the Act,
415
ILCS
5/1
et seq.
(2002),
and the Illinois Pollution Control Board Regulations,
35
Ill. Adm.
Code Subtitles A through
H.
5
IX.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
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 questions
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 as follows:
1.
The impact to the public resulting from VRS’s noncompliance
was that the Illinois EPA and the public were not privy to information
that is important to the control of air pollution in Illinois.
The
permit process and Prevention of Significant Deterioration
(“PSD”)
program and is the only method available for the State to identify
possible air pollution sources and their control and to ensure that
those sources will not contribute to or cause the deterioration of air
6
quality in Illinois.
2.
The gravel production facility that is the subject of the
Complaint has social and economic value.
3.
The facility that is the subject of the Complaint
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.
VRS ultimately achieved compliance by ceasing the
unpermitted operation of the emission source and has applied for and
the requisite air permit for the regulated emission sources, which is
currently under review at the Illinois EPA.
X.
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 subdivisions
(a),
(b) (1),
(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;
7
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.
In response to these factors, the parties state as follows:
1.
The violations that are the subject of the Complaint
occurred over an approximately fourteen-month period.
2.
The Respondent was not diligent in initially, failing to
follow through on an incomplete permit application submitted to the
Illinois EPA in July 2000 and a notice of incompleteness from the
Illinois EPA on August 21,
2000,
and in failing to respond to a
violation notice issued August 30,
2002.
VRS did subsequently respond
to the issuance of a notice of intent to pursue legal action issued
November 6,
2002.
The Respondent also showed diligence in ceasing
operation of the noncompliant emission source in August 2002 and
seeking a permit in compliance with the applicable environmental
statutes and regulations.
3.
The Respondent did accrue an economic benefit by avoiding
timely preparation of construction and operating permit applications,
CAAPP
permit application submittal and PSD demonstrations,
operating
without said permits and in avoiding an air pollution site fee.
4.
The parties believe that a civil penalty of $24,500.00 will
8
deter
VRS
from committing further violations, and will aid’ in
enhancing voluntary compliance by VRS and others similarly subject to
the Act.
5.
The State is not aware of any other adjudicated violations
of the Act by VRS.
XI.
TERMS OF SETTLEMENT
1.
The Respondent represents that it has entered into this
Stipulation and Proposal for Settlement for the purpose of settling
and compromising disputed claims without having to incur the expense
of contested litigation.
By entering into this Stipulation and
Proposal for Settlement and complying with its terms,
the Respondent
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.
2.
VRS shall pay a civil penalty of $24,500.00 into the
Environmental Protection Trust Fund within thirty
(30)
days after the
date the Board adopts
a final opinion and order approving this
Stipulation and Proposal for Settlement.
Payment shall be made by
certified check or money order, payable to the Illinois Environmental
Protection Agency, designated to the Illinois Environmental Protection
Trust
Fund,
and shall be sent by first class mail to:
• Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794
9
A copy of the check shall be sent
to:
Christopher
P. Perzan
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
20th Floor
Chicago,
IL 60601
VRS shall write the case caption and number,
and its Federal Employer
Identification Number
(“FEIN”),
36-2586514,
upon the certified check
or money order.
3.
For purposes of payment and collection, the Respondent may
be reached at the following address:
Grant Avery
Valley Run Stone
10426 Joliet Road
Newark,
Illinois 60541
4.
Pursuant to Section 42(g)
of the Act, 415
ILCS
4/42 (g) (2002),
interest shall accrue on any amount not paid within the
time period prescribed herein, at the maximum rate allowable under
Section 1003(a)
of the Illinois Income Tax Act,
35 ILCS 5/1003 (a)
(2002)
a.
Interest on unpaid amounts shall begin to accrue from
the date the penalty is due and continue to accrue to the date payment
is received.
b.
Where partial payment
is made on any payment amount
that
is due,
such partial payment shall be first applied to any
interest on unpaid amounts then owing.
c.
All interest on amounts owed the Complainant,
shall be
paid by certified check payable to the Illinois Environmental
Protection Agency for deposit in the Environmental Protection Trust
Fund and delivered in the same manner as described in Section XI.2.
10
herein.
5.
VRS shall cease and desist from future violations
of the
Act, 415 ILCS 5/1 et
seq.
(2002), and the Board Regulations,
35
Ill.
Adm.
Code Subtitles A through H.
XII.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation and Proposal for Settlement in no way affects
the Respondent’s responsibility to comply with any federal,
state or
local laws and regulations.
XIII.
RELEASE FROM LIABILITY
In consideration of the Respondent’s payment of a $24,500.00
civil penalty and its commitment
to refrain from further violations of
the Act and the Board Regulations, upon receipt by Complainant of the
payment required by Section XI of this Stipulation,
the Complainant
releases, waives and discharges Respondent and its officers,
directors,
employees,
agents,
successors and assigns from any further
liability or penalties for violations which were the subject matter of
the Complaint herein.
However, nothing in this Stipulation and
Proposal for Settlement shall be construed asa waiver by Complainant
of the right to redress future violations or obtain penalties with
respect thereto.
WHEREFORE,
Complainant and Respondent request that the Board
11
ad.opt
and
accept the foregoing Stipulation and Proposal for Settlement’
as written.
AGREED:
FOR THE COMPLAINANT:
•
FOR THE RESPONDENT:
PEOPLE, OF THE STATE OF ILLINOIS
VALLEY
RUN
STONE, a Division of
AVERY GRAVEL CO.,
C.
LISA
MADIGAN
f)
Attorney
By:____________
By:
RO~MA~I
E ~~EAU,
Th~e~-~
Environmen
Bureau
Assistant Attorney General
Dated:
•
~
I ~
ILLINOIS
ENVIRONMENTAL
PROTECTION
A
NCY
By:__________________________
OSEPH E.
SVOBODA
Chief Legal Counsel
Division of Legal Counsel
•Dated:
9/f
O~
12
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex
rd.
LISA MADIGAN,
Attorney
General of the State of Illinois,
Complainant,
)
PCB 04-06
v.
)
(Enforcement
-
Air)
VALLEY RUN STONE,
a Division of
AVERY GRAVEL CO.,
INC.
an Illinois Corporation,
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 June
11,
2003,
a Complaint was filed with the Pollution
Control Board (“Board”)
in this matter.
Simultaneously with this
Motion,
the parties are filing a Stipulation and Proposal for
Settlement with the Board.
2.
Section 31(c) (2)
of the Illinois Environmental Protection
Act
(“Act”),
415
ILCS
5/31(c) (2), (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 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 dem~ndfor 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) (2002).
Respectfully submitted,
•
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney General
of the
State of~in~s
By
:~
Environmental Bureau
188 West Randolph Street,
20th
Fl
Chicago,
IL 60601
312/814-3532
CERTIFICATE OF SERVICE
I,
CHRISTOPHER
P.
PERZAN,
an Assistant Attorney General,
certify
that
on the 14th day of October,
2003,
I caused to be served by U.S.
Mail by depositing same
in postage prepaid envelopes with the United
States Postal Service located at 100 West Randolph Street,
Chicago,
Illinois 60601
or by hand delivery the foregoing Stipulation and
Proposal
for Settlement and Motion
for Relief from Hearing Requirement
to
the parties named on the attached service list.
I
\AveryGravel\flOtiCe.WPd
