BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~E C E ~V E D
CLERK’S OFFICE
vs.
)
No. PCB
02-162
)
(Enforcement)
FOX VALLEY DRY WALL, INC.,
an Illinois corporation,
to:
Ms Gretta Bieber
Mr. BradleyP. Halloran
Aishuler et al
Hearing Officer
1961
W. Downer Place
Illinois Pollution Control Board
Aurora, illinois 60506
100 W.
Randolph, Chicago IL
NOTICE OF FILING
PLEASE TAKENOTICE that we have today, March 4, 2004,
filed with the Office of
the Clerk oftheIllinois Pollution Control Board, Complainant’s Response to
Board Request for
Clarification, a copy ofwhich is
attached herewith and
served upon you.
Respectfullysubmitted,
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MADIGAIN
Attorney Generalpfthe
State
fIllinois
BY:
~
‘—~“~--‘
C~STOPHERGRANT
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Flr.
Chicago, IL 60601
(312) 814-5388
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
MAR
0
‘~
2004
STATE OF ILLINOIS
Pollution
Control Board
)
)
)
Respondent.
)
•
RECE~V~D
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR
0
42004
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
-vs-
)
PCB No. 02-162
)
(Enforcement-Land)
FOX VALLEY DRY WALL, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
COMPLAINANT’S RESPONSE
TO
BOARD REOUEST
FOR
CLARIFICATION
Now comes Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General ofthe State ofIllinois, and in response to the Board’s February
5,
2004 request for clarification (“Request”),
states as follows:
BACKGROUND
December 5, 2003, the parties filed a Stipulation and Proposal for Settlement
(“Stipulation)
with the Board, as proposed resolution ofthis matter.
The Stipulation calls for
Respondent to pay a civil penalty of$8,000.00 to the Environmental Protection Trust Fund, and
$2,000.00 to
the Attorney General State Projects and Court
Ordered Distribution Fund (“AG
Fund”).
The Board has requested that the parties provide authority allowing it to accept the
proposed tenns.
DISCUSSSION
The Act provides for settlement ofIllinois Environmental Protection Act (“Act”)
enforcement cases through the Stipulation process contained in
Section 31 (c)(2) ofthe Act, 415
ILCS 5/31 (c)(2) (2002).
However, the Act does not specif~’
the contents ofa Stipulation.
1
Section 103.302 ofthe Board’s Procedural Rules, 35
Ill. Adm. Code
103.302, requires only that
the Stipulation address the factors listed in Section 33(c) ofthe Act, 415 ILCS
5/33(c)
(2002).
Complainant is unaware of any section ofthe Act or Board regulations that prohibits, as a part of
settlement, payments into the AG fund.
The law favors the encouragement of settlements.
People v. Alloy Engineeringand
Casting Company,
PCB 01-155 (July
10, 2003) (Slip Op. at 3).
A settlement agreement is
mt
the nature ofa contract between the parties.
Rose v. Mavrakis,
343 Ill. App.3d 1086, (1st Dist.
2003).
For settlements coveredby the Contribution Act 740
ILCS
1002(c),
the Illinois
Supreme Court directs a reviewing body to consider the entire circumstances-surrounding the
settlement.
In re Babb,
162 Ill. 2d 1195
(1994).
In the instant case, the State filed its complaint in April,
2002.
The Respondent did not
file an appearance until June 4, 2003, after the
State had obtained summaryjudgment, and only
seven days before the scheduled hearing on penalty.
At that time,
the Respondent agreed, in
principle, to the terms contained in the Stipulation, including the $2,000.00 additional payment.
The
State had offered to
settle for a penalty of $8,000.00 in November,
2002.
The
Respondent neither responded to this offer nor appeared.
The Attorney General was compelled
to expend public resources in filing for and obtaining summaryjudgment,
attending status and
pre-hearing conferences,
and preparing for the hearing on penalty.
For this reason,
the State
subsequently sought, and Respondent agreed to, payment of$2,000.00 to
the AG Fund.
Complainant believes that the additional payment will act as an incentive to
earlyresolution of
comparatively undisputed cases.
The
State could have increased the civil penalty, once the Respondent appeared.
2
However, both the Attorney General and Illinois EPA had already decided, based on the facts of
this particular case, that an $8,000.00 penalty was appropriate.
The State could also have
requested attorney fees, pursuant to Section 42(f) of theAct, 415 ILCS
5/42(f)
(2002).
However,
neither Illinois EPA nor the Attorney General believed that the violations met the ‘wilful,
knowing or repeated’ standard contained therein.
The agreed payment to the AG Fund, which
was established,
inter alia,
to receive court-imposed sanctions, provided a reasonable alternative.
•
As noted in the Board’s Request, the Board has accepted Stipulations containing
payments to the AG Fund in the past citing
People v.
Clark Refining & Marketing,
PCB
95-163
(January 23,
1997).
In addition, the Board has accepted Stipulations containing other
‘non-
statutory’ remedies.
For example, until the recent amendments,
effective January
1, 2004, the
Act did not make reference to
Supplemental Environmental Projects (“5BPs”).
Yet the Board
has accepted Stipulations containing 5BPs on several occasions.
For example, in
People v. Alloy
Engineering and Casting Company,
PCB 0
1-155
(July
10, 2003), the Board found that the
parties’ proposal for a combined penalty/SEP settlement met the purposes of the Act, (Slip op. at
4).
The State believes that,
in the particular circumstances ofthis case, the agreed $2,000.00
payment to the AG Fund is fair, and will aid in enforcement.
The State
is not
aware of any
provision ofthe Act which prevents the Board from issuing an Order requiring payment as
agreed by the parties.
For the foregoing reasons, the
State respectfully requests that the Board accept the
Stipulation as submitted.
3
RESPECTFULLY SUBMITTED:
PEOPLE OF THE
STATE OF ILLINOIS
by LISA MADIGAN,
Attorney General ofthe
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litiga.~ion
Division
BY:
~
CHRISTOPHER GRANT
Environmental Bureau
Assistant Attorney General
188 West Randolph Street,
20th
Floor
Chicago, IL
60601
(312) 814-5388
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
-vs-
)
PCB No. 02-162
)
FOX VALLEY DRY WALL, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, CHRISTOPHER GRANT,
an attorney, do certify that I caused to be served this 4thday
ofMarch, 2004,
the foregoing Response to Board
Request for Clarification, and Notice ofFiling,
upon the person listed on said Notice by placing same in an envelope
bearing sufficient postage
withthe United States Postal
Service located at
100
W. Randolph, Chicago Illinois.
CHRISTOPHER GRANT