RECE

WED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

JUN H

2004

PEOPLE OF THE STATE OF ILLINOIS,

STATE OFILLINOIS

Complainant;

)

Pollution Control

Board

-vs-

)

PCB No.

04-142

VILLAGE OF

POPLAR

GROVE,

an

Illinois

municipal corporation,

and,

R.H. BATTERMAN & COMPANY,

INC.,

a Wisconsin corporation,

Respondents.

NOTICE OF FILING

PLEASE TAKE NOTICE that we have today, June 14,

2004• filed

with the Office of the Clerk of the Illinois Pollution Control

Board an original and nine of the Stipulation and Proposal

for Settlement,

and Motion to Waive the Requirement of a

Hearing,

copies of which are attached herewith.

PEOPLE OF THE STATE OF ILLINOIS

LISA

M~DIGAN

Attorney Genera7. of the

Stat

of Illino/is

BY:

_____________________

CkR~STOPHER

GRANT

Assistant

Attorney

General

Environmental Bureau

188 W. Randolph St.,

20th

Fir.

Chicago,

IL

60601

(312)

814-5388

---

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

JUN

14

20Q4

PEOPLE OF THE STATE OF ILLINOIS,

)

STATE

OF

ILUNOIS

Pollution Control Board

Complainant,

-vs-

)

PCB No.

04-142

VILLAGE OF POPLAR GROVE,

an

Illinois

municipal corporation, and

R.H. BATTERMAN & COMPANY,

INC.,

a Wisconsin corporation,

Respondents.

)

MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT

NOW

COMES the Complainant,

PEOPLE

OF

THE STATE OF ILLINOIS,

by

LISA

MAJJIGAN,

Attorney

General

of

the

State

of

Illinois,

and

requests relief from the requirement of a hearing in this matter.

In support thereof, the Complainant states as follows:

1

Along with this Motion,

Complainant is filing a

Stipulation and Proposal for Settlement executed between

Complainant and Respondents,

VILLAGE OF POPLAR GROVE, and R.H.

BATTERMAN

&

COMPANY,

INC.

2.

Section 31 of the Act,

415 ILCS 5/31

(2002)

,

provides,

in

pertinent part,

as follows:

*

~*.

*

(c) (2)

Notwithstanding the provisions

of subdivision

(1)

of this subsection

(c), whenevera

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,

—1-

---

the Board shall cause notice of the stipulation,

proposal and request

for, relief tobe 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 demand for

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 now scheduled in this, matter.

4.

The Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

hereby 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

by LISA

MADIGAN,

Attorney General of the

State of Illinois

BY:

MATTHEW J.

DUNN,

‘Chief

•,

Environmental Enforcement/Asbestos’

•Li~igatio~.Divisio

.STO~ERGRANT

Assistant Attorney General

Environmental Bureau’

188 W. RandolphSt.,

#2001

Chicago,

Illinois

60601

(312)

81.4-5388

L

-2-

---

•

.

•

,

RECE~VE~D

•

.

CLERK’S OFFICE

BEFORE THE, ILLINOIS POLLUTION CONTROL BOARD

JUN

142004

PEOPLE OF THE STATE OF ILLINOIS,

)

.

STATEOFILLINOIS

•

‘

.

.

)

Pollution Control Board

Complainant,

-vs-

,

.

)

PCB

VILLAGE OF POPLAR GROVE,

an

)

Illinois

municipal corporation,

and,

R

.

H. BATTERMAN & COMPANY,

INC.,

a Wisconsin corporation,

•

‘

Respondents.

STIPULATION AND PROPOSAL FOR SETTLEMENT

• Complainant,

PEOPLE OF THE STATE OF ILLINOIS, byLISA

MADIGAN,

Attorney General of the State of Illinois,

at the

‘request of the Illinois Environmental Protection Agency,

and

Respondents,

VILLAGE OF POPLAR GROVE,

an Illinois municipal

corporation,

and R’.H. BATTERMAN & COMPANY,

INC.,

a Wisconsin

corporation,

do hereby agree to this Stipulation and Proposal for

Settlement

(“StipulatIon”)

.

.

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 full 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 intrdduced into evidence in this or any other

proceeding except to enforce the terms of this agreement.

-1-

---

Notwithstanding the previous sentence,

this Stipulation and

Proposal

for, Settlement and any Illinois Pollution Control Board

(TiBoardul) order accepting same may be used in any future

enforcement action as evidence of a past adjudication of

violation of the Illinois Environmental Protection Act

(TTActTT)

for purposes of Sections 39(1)

and 42(h)

of the Act,

415 ILCS

5/39(i)

and

5/42(h)

(2002).

I.

•

JURISDICTION

The Board has jurisdiction of the subject 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.

‘

I

‘

‘

‘

‘APPLICABILITY

‘

‘

‘

‘

This Stipulation and Proposal for Settlement shall apply, to

and,’be binding upon the Complainant and the Respondents,

and each

of them,

and on any officer, director,

agent, employee or servant

of the Respondents,

as well

as Respondents’

successors and

assigns.

.

‘

‘

‘

‘

‘~

‘

‘

-2-

---

The Respondents shall not raise as a defense to any enforcement

action taken pursuant to this settlement the’ failure of officers.,

directors,

agents,

servants,

or employees of either Respondent to

take such action as shall be required to comply with the

prov±’sionsof this settlement.

Iv.

STATEMENT OF FACTS

A.

‘

Parties

‘

‘

‘

1.

The Attorney General of the State of Illinois brought

this action on her own ‘motion,

as well

as at the request of the

Illino±sEnvironmental Protection Agency

(“Illinois EPATT),

pursuant to the statutory authority vested in her under Section

31of

the Act,

415 ILCS 5/31

(2002).

2.

Illinois EPA is an agency of the State of Illinois’

created pur,suant to Section 4of the Act,

415 ILCS 5/4

(2002),

and is charged,

inter alia,

with the ‘duty of enforcing the Act.

3.

Respondent,

VILLAGE OF POPLAR GROVE (“Poplar Grove”),

is’

an Illinois municipal corporation,

located in Boone County,

Illinois.

,

‘

‘

“

‘

‘

‘

4.

Respondent’,,, R. H.

‘BATTERMAN & COMPANY,

INC.,

(“Batterman”)

,

±sa W1sc~nsincorporation.

B.

‘

Facility Description,

‘

‘

Respondent Poplar Grove

is the owner and operator

of’ a

potable water system,

including water mains,

storage tanks,

and

distributiOn lines.

Onor

about September 15, 2002,,Poplar Grove

-3-

---

b,egan construction of a new above ground storage

(“new water

tower”)

to be connected to its potable water supply system.

On February 21,

2003,

the Illinois EPA issued an ‘as-built’

approval letter for the now-completed new water tower.

Respondent ,Batterman provided engineering and construction

oversight services ‘for construction of the new water tower.

Batterrflan’S responsibilities’ included obtaining Illinois ‘EPA

construction permits.

C.

Nonöompliance

Complainant has alleged, the following violations of the Act

against the Respondents:

•

COUNT

I:

CONSTRUCTION WITHOUT A PERMIT,

violation of 415 ILCS 5/15 and ‘18 (a) (2002)

and 35 Ill. Adm. Code 602.101.

D.

Response to allegations

‘

•

The Respor~dentsadmit to the violations alleged in the

Complaint filed in ~chismatter and referenced herein.

V.

IMPACT ON THE PUBLIC RESULTING

FROM NONCOMPLIANCE

Sect’ion 33 (c)

of. ,the Act,

415

ILCS, 5/33

(c)

(~002)

,,

provides

as follows:

In making its orders and determinations, the Board shall

take into consideration all the

fac’ts’ and circumstances

bearing

upon

the

reasonableness

of: the

emissions,

discharges,

or

deposits

involved

including,

but

not

limited to:

‘

‘

‘

1.

•

the

.characte’r

andy

degree

of

injury

to, .or

interference

with

the protection

of

the

health,

-4-

---

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.

ANALYSIS:

‘

‘

The’ parties mutually state as follows:

I.

Character and Degree of Injury:

The. impact to the public from the alleged violations

of the

Act was to prevent Illinois EPA’ from reviewing plans for

conformance with Board and Illinois EPA water main engineering

requirements,

and monitoring construction practices through spot

inspections.

‘

‘

2;

Social and Economic Benefit:

The parties agree that coi~structionof the new water tower

to improve Poplar Grove’s, public water supply is of social and

economic benefit.

‘

‘

‘

‘

‘

“

‘

‘

3.

Suitability

to

the Area:

‘

,

The new water tower

i’s’ suitable to the area.’

4.

Technical Practicability:

‘

‘

,.

-5-

---

Obta,ining required, permits prior

to construction and

operation of publi,c water supply improvements is both technically

practicable and economically reasonable.

5.

Subsequent Compliance:

‘Respondents cooperated with Illinois EPA and’provided ‘as-

built’

plans to obtain

‘as built’, approval for Poplar Grove’s new

water tower.

VI.

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

o’n 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

otherw,ise

‘

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.

‘

:

‘

,

-6-

---

ANALYSIS:

‘‘

1.

Duration and Gravity of the Violation:

The

violations

extended

from

approximately

September

15,

2002

until

February

21,

2003..

2.

Diligence of Respondent:

Following notification of violations,

the Respondents were.

diligent’ in providing “as-built” ‘plans to Illinois EPA.

3.

Economic Benefit of Noncompliance:

Complainant

is

not

aware

‘of

any

significant

economic

benefit

from

the”

alleged

noncompliance.

‘

‘

4.

Deterrence:

‘A penalty of One Thousand Dollars

($1,000.00)

against

Respondent Poplar Grove,

and

a, penalty of Three Thousand Dollars

($3,000.00)

against Respondent Batterman will deter future

noncompliance by the Respondents and others.

5.

Compliance History:

‘

.

‘

The Respondents have no previously adjudicated violations of

the Act and Board Regulations.

‘

.

VII

TERNS OF SETTLEMENT

‘

‘,

•

1.

The

Respondents shall pay the following penalties:

a.

Respondent Poplar Grove shall pay the sum of One

Thousand Dollars

($1,000.00);

‘

‘

‘

‘

‘

b. “Respondent R.H. Batterman & Company,

Inc.

shall pay

the’ sum of Three Thousand Dollars

($3,000.00)

.

-7-

---

Each penalty shall

be, paid within thirty

(30) days after the

date on which the Board adopts a final order approving’this

Stipulation and Proposal for Settlement.

Each payment shall be

made by certified check Or money order, payable to the Illinois

EPA,

designated for deposit into the Environmental Protection

Trust Fund,

and shall be sent by first class mail

to:

Illinois Environmental Protection Agency

‘Fiscal Services

1021. North Grand Avenue East

P.O. Box 19276

‘Springfield,

IL

62794-9276

2’.

‘Each Respondent shall write its Federal Employer

Identification (“FEIN”)

on its respective certified check or

money order.

For issues relating to the payment of the penalty,

the Respondents may be reached at the following ‘addresses:

.

Mr.

Roger Day, Village President

Village Poplar Grove

100

S.

State

Poplar Grove Illinois,

61065

Mr.

Thomas’ Nee, President

R.H. Batterman & Company,

Inc.

2857 Bartelis Drive

Beloit, Wisconsin 53511.

‘

‘

A copy of each certified check or money orde±~,and all

related correspondence,

shall be sent by first class mail

to:

Christopher Grant

‘

‘

Assistant Attorney General

.

Environmental Bureau

‘

188, West Randolph,

20th

Flr.

Chicago,’ Illinois 60601

3.

Pursuant to Section 42(g)’ of the Act,

415 ILCS 5/42(g)

-8-

---

•‘(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)

4,.

,,

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.

5.,

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.

6.

All interest on penalties owed the’ Complainant shall be

‘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 number 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:

‘

‘

Christopher Grant’

Assistant Attorney General

(or other designee)

Environmental’ Bu’reau

188W.

Randolph St.,,

20th

Floor

Chicago,

Illinois 60601,.

‘

VIII.

,

CEASE AND DESIST

Respondents shall cease and desist from future violations of

the Act

a’nd Board regulations,

including but not limited to,

-9-

---

those sections of the Act and Board’ regulations that were the

subject matter of the complaint as outlined in Section IV.C.

of

this Stipulation and Proposal for Settlement.

IX.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation and Proposal for Settlement in no way

affects each Respondent’s responsibility to comply with any other

federal state

or’ lOcal regulations,

including but not limited to

the Act and Board regulations.

Release from Liability

In consideration of the each Respondent’s payment of

penalty,

as specified in Paragraph VII.i,

and each Respondent’s

commitment to cease and desist from future violations,

,the

Complaiflapt releases, waives and discharges each Respondent from

any further liability orpenalties 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. ‘The Complainant reserves,

ai~.dthis Stipulation is

without.prejudiceto,

all rights of the State of Illinois against

each 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 Respondents’

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 hav’e against any person,

as defined by Section

3.3,15 ‘of’ the Act, 415 ILCS 5/3.315

(2002), or ‘entity other than

the Respondents.

‘

‘

WHEREFORE,

Complainant’ and Respondents request that the

,Board adopt’and accept the forego,ing Stipulation and Proposal for

Settlement as written.

‘

‘

‘

‘

‘

‘

-

1±-

---

FOR THE COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

by

LISA

MADIGAN,

Attorney General of the

State of Illinois

MATTHEW J.

DUNN,

Chief

Environmental ‘Enforcement!

AsbestOS Litigation Division

BY:

Z

~

ROSEMARIE

CAZEAU,

C

ief

Environmental

Bureau

,

Assistant

Attorney

General

DATE:

~

/~~/~i

ILLIN

S ENVIRON1~IENTALPROTECTION AGENCY

BY:

‘

J SEPH E. SVOBODA

‘

,‘ief Legal Counsel

‘

‘

DATE:______

-12-

---

AGREED

FOR THE COMPLAINANT:

PEOPLE OF THE STATE

OF ILLINOIS

by

LISA’MADIGAN,

Attorney General of the

‘State of Illinois

DATE

:

~/~3/~

~L

-12-

MATTHEW J.

DUNN,

Chief

Environmental Enforcement!

Asbestos Litigation Division

BY:

~

77’~_.~

~

~

ROSEMARIE CAZEATJ,

C ief

Environmental Bureau

Assistant Attorney General

DATE:

“

,~

/~/~“

‘

AGENCY

ILLIN

S ENVIRONMENTAL PROTECTION

BY:

‘

J SEPH E. SVOBODA

‘

‘.

ief Legal Counsel

‘

.

---

FOR THE RESPONDENTS:

VILLAGE OF POPLAR GROV~

BY:

Title:

Thomas

H.

Nee

DATE;

_________

Date:

April

7flfl4

-1-

---

BEFORE THE

ILLINOIS, ‘POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ‘ILLINOIS,

Complainant,

-vs-

)

PCB

No.

04-142

VILLAGE OF

POPLAR

GROVE,’ an

Illinois

municipal corporation,

and,

R.H.. BATTERMAN

.& COMPANY,

INC.,

‘a Wisconsin corporation,

Respondents.

CERTIFICATE OF SERVICE,

I,

CHRISTOPHER GRANT,

an attorney,

do

certify that

to be served this 14th day of June,

2004,

Hearing upon the persons listed below, by first class mail, by

placing same. in an envelope bearing sufficient postage with

the

United States Postal Service located at 100

W.

Randolph,

Illinois and addressed

to:

1’

A

~

‘~‘~

-

C)

CHRISTOPHER

GRANT

Service’ List:

Mr. Charles Thomas Sewell

,

Attorney

at

Law

Strom,

Sewell

Larson

&

Popp

‘

215

South

State

Street

Belvidere,,

Illinois

61008

. .

Hearing Officer. Bradley P. Halloran

Illinois Pollution Control Board

hand

delivery