BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD~E~~jUED
CLERK’S
OFFICE
PEOPLE
OF THE STATE OF
)
ILLINOIS,
)
NOV
2
4
2003
Complainant,
)
Pothitfon
Control
Bo~
rd
vs.
)
PCB
No. 03-233
)
(Enforcement
-
Water)
GERALD HEWING,
dibla
HEWING
)
TECHNICAL SERVICES,
)
Respondent.
NOTICE
OF FILING
To:
Gerald Hewing
dlb/a
Hewing Technical Services
Rural Route
1,
Box 3
Sigel,
IL 64262
PLEASE TAKE
NOTICE that on this
date
I
maUed for filing with the
Clerk of the Pollution
Control
Board
of
the
State
of
Illinois,
a
NOTICE
OF
FILING,
MOTION
FOR
RELIEF
FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT, a copy of
which is attached
hereto and
herewith
served upon
you.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA
MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
4C~L~J~
O.
SAL~X’
A.
CARTER
Assistant Attorney General
Environmental Bureau
500 South
Second Street
Springfield,
Illinois
62706
217/782-9031
Dated: November 20, 2003
CERTIFICATE OF SERVICE
-
—
I hereby certify that
I
did on
November 20, 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:
To:
Gerald
Hewing
d/b/a Hewing
Technical
Services
Rural
Route
1,
Box3
Sigel,
IL 64262
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
James
R. Thompson Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois
60601
A copy was also sent to:
Carol Sudman
Hearing Officer
Illinois
Pollution Control
Board
1021
N. Grand Avenue East
Springfield,
IL 62794
(1.
Sally A~~arter
Assistant Attorney General
This filing
is submitted
on
recycled paper.
-
/
/
-
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S
OFFICE
NOV
24
Complainant,
STATE OF ILLINoIs
V.
)
PCB
NO.
03-233
1’~~11UtIon
Control Board
)
(Enforcement
-
Water)
GERALD HEWING
dibla
HEWING
)
TECHNICAL SERVICES,
)
Respondent.
MOTION
FOR
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
pursuant to subsection 32(c)(2)
of the
Illinois
Environmental Protection
Act (“the Act”), 415
ILCS 5/32(c)(2)
(2002),
moves that the
Illinois
Pollution Control
Board
(“the Board”) grant the PEOPLE
OF THE
STATE OF ILLINOIS
and
GERALD HEWING d/b/a HEWING TECHNICAL SERVICES relief from
the hearing
requirement in the above-captioned matter.
In support of this motion,
Complainant states as
follows:
1.
On June
18, 2003, the Complainant filed
a Complaint with the
Board, alleging
that the Respondent improperly discharged
sanitary and process
wastewater to waters
of the
State
In addition,
the Complaint alleged open
burning violations
by the Respondent.
2.
The
People of the State of Illinois and the Respondent,
Gerald
Hewing,
have
reached agreement on all
outstanding
issues
in this matter.
3.
This agreement is memorialized
and
presented to the Board
in a Stipulation and
Proposal for Settlement, filed
contemporaneously with
this motion
4.
The parties, the People of the State of Illinois and
Gerald
Hewing agree that a
hearing
on the Stipulation and
Proposal
for Settlement is not necessary, and
request relief from
such a hearing
as provided pursuant to
subsection
31 (c)(2) of the Act, 415
ILCS 5/31 (c)(2)
(2002).
WHEREFORE, Complainant,
People of the
State of Illinois,
hereby respectfully requests
that the Board grant this Motion for Relief from the Hearing Requirement between Gerald
Hewing and
the People of the State of Illinois,
as set forth
in subsection 31 (c)(2) of the Act, 415
-
ILCS 5/31(c)(2)
(2002).
Respectfully submitted,
PEOPLE
OF THE STATE
OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J.
DUNN, Chief
Environmental Enforcement Division
BY:____________
SALLY~A.CARTER
Environmental Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois 62706
21 7/782-9f331
Dated:
ii
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~
S OFFICE
-
-
N0V24200
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
Complainant,
)
~~~~UtiOn
Controj
Board
vs.
)
No.
PCB 03-233
GERALD HEWING
dibla
HEWING
)
TECHNICAL SERVICES,
)
)
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
-
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA MADIGAN,
Attorney
General of the State of Illinois, the Illinois Environmental
Protection Agency (“Illinois EPA”),
and
Respondent,
GERALD
HEWING d/b/a HEWING TECHNICAL SERVICES, have agreed
to the
making of this Stipulation and
Proposal for Settlement 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
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
any other proceeding regarding the claims asserted
in the Complaint except as
otherwise provided
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.
JURISDICTION
The Board
has jurisdiction of the subject matter herein
and of the
parties
consenting
hereto pursuant to the Illinois
Environmental Protection Act (“Act”), 415 ILCS 5/1
et seq.
(2002).
1
II.
AUTHORIZATI ON
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.
Ill.
STATEMENT OF FACTS
A
Parties
1.
On June
18,
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
42(d) and
(e) of the Act, 415
ILCS 5/42(d)
and
(e)(2002), against the Respondent.
2.
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).
3.
At all
times relevant to the Complaint,
Respondent,
Gerald
Hewing does
business
as
Hewing Technical
Services
(“Hewing”).
B.
Site Description
1.
At all times relevant to
the Complaint,
Respondent owned and
operated a small
auto
repair shop,
Hewing Technical
Services located
in Sigel,
Shelby County,
Illinois (“site”).
2.
On
June
13,
2000, the Illinois EPA Bureau of Water (“BOW”) and
the Shelby
County Health Department investigated the facility following a complaint regarding discharges
from the facility’s septic tank.
Upon arrival at the facility,
a small pile of trash was burning on
the property.
-
3.
On June
13,
2000,
the
Illinois
EPA BOW discussed the discharge complaint with
2
Hewing.
Hewing initially stated that an agreement
existed
between the Village of Sigel and
him
to “split the cost” of connecting
the septic tank to
the Village of Sigel’s collection system.
However, when pressed to
see the septic tank discharge,
the Respondent led the
Illinois EPA
to a ditch
receiving the discharges.
The ditch
is a water of the State as that term
is defined
in
Section 3.550 of the Act, 415
ILCS 5/3.550 (2002).
4.
The Illinois
EPA BOW observed the septic tank is located under a concrete
platform; the ditch
receiving
its
discharges is approximately 20 feet from the septic tank.
The
Illinois EPA
BOW
noted
a sewage odor emanating
from water in
the ditch where the septic tank
discharged.
5.
Another discharge pipe was
located in the ditch about fifteen feet from the septic
tank discharge.
The pipe contained
a
black substance and
a black stain
existed below the
pipe
in the ditch.
6.
The Illinois
EPA inspector asked Hewing where the shop’s floor drains
discharge.
Hewing
indicated that the drains are connected
to the second
pipe after passing
through
an oil/water separator.
The Illinois
EPA explained
to Hewing
that the oil/water
separator is only intended
to act
as a waste pretreatment
system
prior to discharge
to a full
treatment facility,
and that it
in
itself does not provide adequate treatment for a direct discharge
to
the environment.
The oil/water separator,
along with the septic
tank, should
have
been
connected
to the sewage collection system.
7.
The Illinois
EPA next inquired of Hewing what was done with the waste oil
from
the cars
he
repaired.
Hewing showed the inspector eight 20-gallon
buckets that he
uses to
store oil;
one of which was uncovered.
The buckets
were not labeled as containing waste oil.
8.
On June
13,
2000, the receiving
ditch was discolored and
malodorous and
contained
oily,
discolored discharges from the septic
tank and oil/water separator.
3
9.
The Illinois
EPA has
not issued the Respondent a
National Pollutant Discharge
Eimination
System
(“NPDES”) permit for the facility.
10.
On
September 12,
2000,
the Illinois
EPA Bureau of Land (“BOL”) conducted a
land
inspection of the Respondent’s facility.
During the inspection, the Illinois
EPA noted
evidence of open
burning
of refuse on
the property.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated
the following
provisions of the
Act and
Board Regulations:
Count
I:
By causing, allowing or threatening the discharge of contaminants to
waters of the State so as
to cause or tend to cause water pollution in
Illinois, or to violate the
Board’s regulations or standards,
the Respondent has violated
Section
12(a) of the Act, 415
ILCS 5/12(a)
(2002).
Count
II:
By allowing contaminants to discharge through buried
pipes to the ditch,
a
point source
without a NPDES permit, the Respondent has violated
Section
12(f) of the
Act,
415
ILCS 5/12(f)
(2002).
Count Ill:
a.
By allowing used
oil
and septic tank discharges
to discharge
to
the ditch,
a water of the State, where the unnatural odor and
discolored material was
noticeable,
the Respondent has violated 35
Ill. Adm.
Code 302.203.
b
By violating
the regulations or standards
adopted by the
Board,
the Respondent has violated
Section
12(a) of the Act, 415
ILCS 5/12(a) (2002).
Count IV:
a.
By allowing the discharges of discolored and
malodorous waste
from
its septic tank
and
oily, discolored discharges from its oil/water separator,
the Respondent
has violated 35
III.
Adm.
Code 304.106.
b.
By violating the regulations or standards
adopted
by the
Board,
4
the Respondent has
violated
Section
12(a)
of the Act, 415
ILCS 5/12(a)
(2002).
Count V:
By causing, threatening, or allowing the discharge or emission of a
contaminant into the environment
so
as to
cause air pollution,
the Respondent has violated
Section
9(a) of the Act, 415
ILCS 5/9(a)
(2002).
Count V:
By causing
or allowing
the open
burning
of any
refuse or conducting a
salvage operation
by open burning, the Respondent has
violated Section 9(c) of the Act, 415
ILCS 5/9(c)
(2002).
D.
Admission of Violations
The Respondent admits to
the violations alleged
in the Complaint filed
in this matter and
referenced
herein.
E.
Compliance Activities to
Date
Respondent applied for and
received from the Illinois
EPA water pollution control
permit
number 2003-EE-4023 to construct and operate
an oil/water separator for the pretreatment of
wastewater generated
by the wash down of the automobile repair shop.
Pre-treated
wastewater will
be discharged to
the Village of
Sigel’s publicly-owned treatment works for final
treatment.
IV.
APPLICABILITY
This Stipulation shall apply to and
be binding
upon the Complainant and the
Respondent,
and any
officer or agent 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 or agents to
take such action
as shall
be required
to comply with the provisions of this Stipulation.
1.
No
change in ownership,
corporate status
or operator of the facility shall
in any
5
-
way alter the-responsibilities
of the--Respondent under this Stipulation and
Proposal for
Settlement.
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 and
Proposal for Settlement.
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 any Order
approving and
adopting
the terms of this Stipulation
and
Proposal for Settlement to obligate
the
proposed
purchaser or operator to carry out future requirements of this Stipulation and
Proposal for Settlement
in
place of, or in addition to,
the Respondent.
2.
In the event that the
Respondent proposes to
sell
or transfer any real property
or
operations subject
to any Order accepting
and adopting
the terms of this Stipulation and
Proposal for Settlement, the Respondent shall notify the Complainant 30 days
prior to the
conveyance of title, ownership or other interest,
including
a leasehold interest in
the facility or a
portion thereof. The Respondent shall make the prospective purchaser or successor’s
compliance with
any Order accepting
and
adopting the terms of this Stipulation
and
Proposal
for Settlement a condition
of any such
sale or transfer and shall provide a
copy of this
Stipulation and
Proposal for Settlement and
any Order accepting
and
adopting the terms of this
Stipulation and
Proposal for Settlement to any such successor in
interest.
This provision
does
not relieve the Respondent from compliance with
any regulatory requirement regarding notice
and
transfer of applicable
facility permits.
V.
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 the
6
Board
Regulations, 35
III.
Adm. Code,
Subtitles A througFT H.
VI.
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 sourceto thearea 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 the following:
1.
Plaintiff contends that the injury to, or interference
with, the protection of the
health,
general welfare,
and
physical
property of the People would
be characterized
as a
potential for air and water
pollution and the degree
of injury would
be dependent upon the
extent of the pollution and
the degree of exposure to that pollution;
-
2.
The parties
agree that the Respondent’s facility
is of social and
economic
benefit;
3.
The automobile repair shop
is located
in
rural
Sigel
and
is suitable for the area
in
which
it operates.
4.
The parties agree that complying with
the Act and
regulations is technically
practicable and
economically reasonable;
and
7
5.
Respondent applied for and received from the Illinois
EPA water pollution control
permit number 2003-EE-4023
to construct and
operate an oil/water separator for the
pretreatment of wastewater generated
by the
wash down of the automobile repair shop.
VII.
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.
In
response to these factors,
the parties state as follows:
1.
The violations began
on a date better known to
the Respondent on or before
June
13,
2000,
have been individually resolved
at various times
in
2003 and
continue to be
resolved in
conjunction with this Stipulation;
2.
In response to this lawsuit,
Respondent applied for and
received from the Illinois
EPA water pollution control
permit number 2003-EE-4023 to construct and operate an oil/water
separator for the pretreatment of wastewater generated by
the wash down of the automobile
repair shop.
Pre-treated wastewater will
be discharged
to the Village of Sigel’s
publicly-owned
8
treatment works for final treatment.
-
3.
The economic benefit of Respondent’s
noncompliance is the savings realized by
not having in
place a properly permitted
oil/water separator to appropriately pre-treat
wastewater generated
by the wash down of the automobile
repair shop.
4.
Complainant has determined that a
penalty of two thousand
dollars
($2,000.00)
will serve to
deter further violations and
aid
in future voluntary compliance with the Act
and
Board
regulations.
5.
To
Complainant’s knowledge, Respondent has no
previously adjudicated
violations
of the Act.
VIII.
TERMS
OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall
pay a total penalty in the sum of two thousand
dollars
($2,000.00)
to the Environmental Protection Trust Fund
(“EPTF”)
in four installments.
Within
thirty (30) days
after
-the date the Board adopts and
accepts this Stipulation, the Respondent
shall
pay five hundred
dollars ($500.00) to the
EPTF.
Within
one hundred and twenty
(120)
days
after the date the Board adopts and
accepts this Stipulation,
the Respondent shall pay five
hundred dollars ($500.00) to
the
EPTF.
Within two hundred and ten (210) days after the date
the
Board
adopts
and
accepts this Stipulation,
the Respondent shall pay five hundred dollars
($500.00) to the EPTF. Within three hundred
(300) days after the date the Board adopts and
accepts
this Stipulation, the Respondent shall pay five hundred
dollars
($500.00) to the
EPTF.
The penalty described
in
this Stipulation
shall
be
paid
by certified
check payable
to
the Illinois
EPA, designated
to the
Illinois Environmental Protection
Trust Fund and
submitted to:
9
Illinois Environmental Protection Agency
Fiscal
Services Section
1021
North
Grand Avenue East
P.O.
Box 19276
Springfield,
IL 62794-9276
‘.,
C.
—
~
~:~-
The
name and
number of the case
and
Respondent’s FefJer~l
Ernpleyer
Idoritifiection r~umbef-
3 ~4’~
~*
74’Y
I,
shall appear on the check.
A copy
of the certified
check or money
order
and
the transmittal letter shall be sent to:
-
Sally Carter
-
Assistant Attorney General
Environmental Bureau
500 South
Second Street
-
Springfield,
Illinois
62702
2.
Pursuant to
Section 42(g)
of the Act, 415 ILCS 5/42(g)
(2002),
interest shall
accrue
on
any payment not paid within the time period prescribed
above at the maximum rate
allowable
under Section
1003(a) of the Illinois
Income Tax Act, 35
ILQS 5/1 003
(2002).
Interest
on any
unpaid
payment shall begin
to accrue from
the date the payment is due and
continue to
accrue until the date payment is received.
When
partial payment(s) are
made,
such partial
payment shall
be first applied to
any interest on
unpaid payment
then
due and
owing.
All
interest on payment owed shall
be paid
by certified
check or money order,
payable
to the
Treasurer of the State
of Illinois, designated to
the Environmental Protection
Trust Fund and
delivered to the address and
in the manner described above.
3.
Upon Respondent’s failure to
pay any installment of the penalty when due,
the
entire balance of the penalty remaining unpaid shall without notice
be and
become
immediately due
and
payable.
4.
For purposes
of payment and
collection, Respondent may
be reached
at the
following
address:
10
Gerald
Hewing
d/b/a Hewing
Technical Services
Rural
Route
1, Box 3
Sigel,
IL 64262
5.
In the event of default, the Complainant shall
be entitled to all
available relief
including,
but not limited to, reasonable
costs of collection
and reasonable attorney’s fees.
B.
Technical
Compliance
1.
The Respondent shall connect the oil/water separator to the Village of Sigel’s
collection
system by December 31, 2003.
Prior to the connection
of the oil/water separator,
the
Respondent shall ensure that
no water/ contaminants are discharged
to the ditch.
The
Respondent shall ensure that no
discharge takes place through one
of the following
means:
a.
The Respondent shall collect
all water
used
at the facility rather than
sending
any water to the separator/ dry sump;
b.
The Respondent shall plug the discharge pipe and
collect any water in
the dry sump; or
c.
The Respondent shall place a container below the discharge pipe and
•
collect any water discharged through the
pipe.
2.
The Respondent shall remove
all contaminated soil below
the dry sump
discharge
pipe and
shall properly disposed of all contaminated
soil
at a
permitted
landfill
or
other permitted
facility by December 31, 2003.
3.
The Respondent shall properly label all waste oil containers with the words “used
oil” by December
31,
2003.
At all times,
the Respondents shall cover the containers with
appropriate lids and shall keep
the containers closed except when
adding or removing
used oil.
4.
No open burning
of waste other than on-site
generated landscape waste
may be
burned
on
site.
The Respondent must
receive written approval from
the Illinois
EPA prior to
11
burning on-site
generated
landscape waste.
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 Sections 39(i)
and/or 42(h)
of the Act, 415 ILCS
5/39(i) and/or 5/42(h)(2002).
0.
Correspondence, Reports
and
Other Documents
Any and all correspondence,
reports
and any other documents
required
under this
Stipulation, except for payments pursuant to
Section
IX. of this Stipulation, shall be submitted
as follows:
As to the Complainant
Sally Carter
Assistant Attorney General
Environmental Bureau
500 South
Second Street
Springfield,
Illinois
62702
Charles Gunnarson
Assistant Counsel
Illinois Environmental Protection Agency
1021
North
Grand
Avenue East
P.O.
Box 19276
Springfield,
Illinois 62794-9276
As to the Respondent
Gerald
Hewing
d/b/a Hewing Technical
Services
Rural Route
1,
Box 3
Sigel,
IL 64262
E.
Right 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 Consent Order,
at all
reasonable
12
times for the purposes of carrying out inspections.
In conducting
such inspections, the Illinois
EPA,
its employees and
representatives, and the Attorney General,
her employees and
representatives
may take photographs,
samples,
and
collect information, as they deem
necessary.
F.
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.
G.
Dispute Resolution
1.
The dispute
resolution
procedure provided
by this section shall
be available
to
resolve all disputes arising
under this Consent Order,
and
except where the Respondent has
violated any payment
or compliance deadline within this Stipulation
and
Proposal for
Settlement.
-
If the Respondent has violated any payment or compliance deadline, the
Complaint may elect to file a petition for adjudication of contempt or rule to
show cause.
Notwithstanding
the above, disputes regarding an
imminent and
substantial endangerment to
the public health, welfare or the environment, or the Illinois
EPA’s approval, comment
on, or
denial
of any report, plan or remediation objective,
or the Illinois EPA’s decision
regarding
appropriate or necessary response activity,
are not subject to
the dispute
resolution provisions
of this Stipulation
and
Proposal
for Settlement.
2.
-
The dispute resolution
procedure shall
be invoked upon the giving
of written
notice
by one of the parties
to this Stipulation and
Proposal for Settlement to
another describing
the nature
of the dispute and
the noticing party’s position with
regard to such dispute.
The
party receiving
such
notice shall acknowledge
receipt of the notice; thereafter the
parties
shall
schedule a meeting
to discuss
the dispute informally not later than
14 days from the receipt of
13
such
notice.
3.
Disputes
submitted to dispute resolution shall,
in the first instance, be the subject of
informal negotiations
between the parties.
Such period of informal
negotiations shall be for a
period of 30 calendar days from the date of the first meeting
between
representatives of the
Complainant and
the Respondent,
unless the parties’ representatives
agree to shorten or
extend
this period.
4.
In
the event that the parties are unable
to
reach
agreement during
the informal
negotiation period, the Complainant may exercise its
authority to
seek judicial resolution
of the
dispute in
any available forum.
5.
The invocation
of dispute resolution,
in and of itself,
shall not excuse compliance
with
any
requirement, obligation
or deadline contained
herein.
6.
As part of the resolution
of any dispute, the parties, by agreement, or by order of
Court, may,
in
appropriate circumstances,
extend or modify the schedule for completion
of work
under any Order accepting and
adopting the terms of this Stipulation
and
Proposal for
Settlement to
account for the delay in the work that occurred
as a result of dispute
resolution.
H.
Release from Liability
In
consideration of the Respondent’s
payment of the $2,000.00
penalty,
upon the
completion of all activities required
hereunder, and
upon the Pollution Control
Board’s
acceptance and approval
of the terms
of this Stipulation and
Proposal for Settlement, 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 other than those
expressly specified
in
Complainant’s
Complaint filed on
June
18,
2003.
The Complainant
reserves,
and
this Consent Order is without prejudice to, all
rights of the State of Illinois against
14
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 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.
I.
Enforcement of Consent Order
1.
Upon the entry of the Board’s Order approving and
accepting
this Stipulation
and
Proposal for Settlement, that Order is
a binding
and enforceable order of the
Illinois Pollution
Control
Board and
may be
enforced as such through any and
all available means.
2.
Respondent agrees that notice of any subsequent
proceeding
to enforce and
Board Order approving
and accepting
this Stipulation
and
Proposal for Settlement may be
made
by mail and waives any requirement of service of
process.
3.
The parties agree that,
if the Board
does not approve and accept this Stipulation
and
Proposal for Settlement, then
neither party is bound
by the terms herein.
4.
It is the intent
of the Complainant and Respondent that the provisions of this
Stipulation and
Proposal
for Settlement and
any Board
Order accepting
and
approving such
shall
be severable,
and should
any provision be
declared
by a court of competent jurisdiction to
be inconsistent with state or federal law, and therefore
unenforceable, the remaining clauses
-
15
shall remain
in full force and
effect.
WHEREFORE, Complainant and
Respondent request that the Board adopt and accept
the foregoing
Stipulation and
Proposal for Settlement as written.
PEOPLE
OF THE STATE
OF ILLINOIS,
LISA
M.
MADIGAN
Attorney General
State of Illinois
I’VlATTHEW J.
DUNN, Chief
Environmental Enforcement/
Asbestos
Litigation
Division
THOMAS DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
BY:
~
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JQSEPI-~.
SVOBODA
L_-~hief
Legal
Counsel
GERALD
HEWING
d/b/a HEWING TE(
BY:
DATE:
///l-o/c3
DATE:_______
DATE:
~
BY:
SERVICES
GERALD
HEWING
16
