November 18, 2004
E~VD
C,,F~(’S ~
NOV
2 ~
200k
STATE OF ILLINOIS
Pollution Control Board
The Honorable Dorothy Gunn
Illinois
Pollution Control
Board
James
R.
Thompson Center, Ste.
11-500
100
West Randolph
Chicago,
Illinois 60601
Re:
People
v.
Lawrence A.
Lipe & Associates, Inc.,
et a!.
PCB
No.
05-96
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of
a
NOTICE
OF
FILING,
MOTION
FOR RELIEF
FROM HEARING REQUIREMENT and STIPULATION AND PROPOSAL
FOR SETTLEMENT in
regard to
the above-captioned matter.
Please file the originals and return
file-stamped
copies
of
the
documents
to
our
office
in
the
enclosed
self-addressed,
stamped
envelope.
Thank you for your cooperation and
consideration.
KL/pp
Enclosures
500 South
Second Street,
Springfield,
Illinois
62706
•
(217)
782-1090
•
YFY: (217)
785-2771
•
Fax:
(217)
782-7046
100
~VestRandolph
Street, Chicago,
Illinois
60601
•
(312)
814—3000
•
‘ITY:
(312)
814—3374
•
Fax:
(312) 814-3806
(XII
East \ lain, Carhondale,
Illinois
62901
•
(6
I8(
529—6400
•
‘I” lY:
(61$)
529—6403
•
Fax:
(61 8)
329—6416
Lisa Madigan
ATTORNEY GENERAL
OFFICE
OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Environmenta’r bureau
500 South
Second Street
Springfield, Illinois 62706
(217) 782-9031
E C
~v~
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOAI~ERK’S
OFFICE
PEOPLE OF THE STATE OF
)
1~SOV22
2004
ILLINOIS,
)
STATE OF ILLINOIS
)
PoIlut~onControl Board
Complainant,
vs.
)
PCB No.
05-96
)
(Enforcement)
LAWRENCE A. LIPE & ASSOCIATES,
)
INC.,
an
Illinois corporation,
Respondent.
NOTICE OF FILING
To:
Lawrence
A.
Lipe & Associates,
Inc.
do Lawrence
A.
Lipe
901
N.
DuQuoin
Street
P.O.
Drawer
130
Benton,
IL 62812
PLEASE TAKE NOTICE
that on this date
I
mailed for filing with
the Clerk of the Pollution
Control Board
of the State of Illinois, a
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
Environmenta L.-EhforcementlAsbestos
Lltl
BY
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
November 18,
2004
Environmental Bureau
CERTIFICATE OF SERVICE
I
hereby certify that
I
did on
November 18,
2004, 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:
Lawrence
A.
Lipe
& Associates,
Inc.
do
Lawrence
A.
Lipe
901
N.
DuQuoin
Street
P.O.
Drawer 130
Benton,
IL 62812
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
This filing is submitted
on
recycled paper.
CLCRK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARD
NOV
222004
STATE OF
lLL~’\lQI3
PEOPLE OF THE
STATE OF ILLINOIS,
)
PoIlut!on Control Board
Complainant,
)
vs.
)
PCB No.
05-96
)
(Enforcement)
LAWRENCE
A. LIPE
& ASSOCIATES,
)
an Illinois
corporation
)
Respondents.
MOTION
FOR
RELIEF FROM
HEARING
REQUIREMENT
NOW
COMES
Complainant,
PEOPLE
OF THE
STATE OF
ILLINOIS,
by LISA
MADIGAN, Attorney General of the State of Illinois,
and
pursuant to
Section
31 (c)(2) of the
Illinois
Environmental Protection Act (“Act”), 415
ILCS 5/31(c)(2)
(2002),
moves that the
Illinois
Pollution
Control
Board grant the parties
in the above-captioned matter relief from the hearing
requirement imposed
by Section
31 (c)(1) of the Act, 415 ILCS
5/31 (c)(1)
(2002).
In
support of
this
motion,
Complainant
states as follows:
1.
Complainant has filed
a
Complaint with the Board,
alleging improper sewer
construction and
improper water main
construction by the Respondents.
2.
The parties
have reached
agreement on all outstanding
issues
in this
matter.
3.
This agreement is presented
to the
Board
in a
Stipulation
and Proposal for
Settlement, filed contemporaneously with this
motion.
4.
All
parties agree that a hearing
on the Stipulation
and
Proposal for Settlement is
not necessary, and
respectfully request relief from such
a hearing
as allowed
by Section
31 (c)(2) of the Act, 415
ILCS 5/31 (c)(2)
(2002).
1
WHEREFORE,
Complainant, PEOPLE
OF THE
STATE
OF ILLINOIS, herebyrequest
that the
Board
grant this motion for relief from the hearing requirement set forth
in
Section
31(c)(1) of the Act.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW
J.
DUNN, Chief
Environmental Enf
500 South
Second Street
Springfield,
Illinois 62706
217/557-5767
Dated: 11/18/04
Environmental
Assistant Attorney General
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
NOV222004
STATE OF
ILLINOIS
PollutIon Control Board
Complainant,
POE
(Enforcement)
LAWRENCE A.
LIPE & ASSOCIATES,
INC.,
an Illinois corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
IvIAJJIGAN, Attorney General
of the State of Illinois,
the Illinois
L
Environmental Protection Agency
(“Illinois EPA”),
and Lawrence A.
Lipe
&
Associates,
Inc. (“Respondent”)
,
have agreed to the making
of this Stipulation and Proposal for Settlement
(“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 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
1
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 Board Order
and not to contest their validity in any subsequent proceeding to
implement or enforce their terms.
I.
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)
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
~
2OO~/
,
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
2
request of the ‘Illinois EPA, pursuant to Section 31 of the Act,
415 ILCS 5/31 (2002)
,
a~ainstthe 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 was
and is an Illinois corporation that is authorized
to transact
business in the State of Illinois.
B.
Site Description
At all times
relevant, to the Complaint,
the Village of North
City in Franklin County,
Illinois,
has employed Lipe & Associates
to serve as a consulting engineer to design and oversee
construction of its drinking water and wastewater systems.
The
water main installed in 1999 was not adequately separated from a
sewer force main installed in 1992.
Additionally, the sewage
force main and a sewage lift station were not included within the
1992 permit’s final plans and specifications prepared by Lipe
&
Associates.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions
of the Act and Board regulations:
3
Count
I:
‘Improper sewer construction,
in violation of
Section 12(c)
of the Act,
415 ILCS 5/12 (c) (2002),
and 35 Iii. Adm.
Code 309.202(a).
Count
II:
Improper water main construction,
in violation of
Section 18(a)
of the Act,
415 ILCS 5/18(a)
(.2002), and 35 Ill. Adm.
Code 602.101(b)
and
653.119(b).
D.
Admission of Violations
The Respondent admits to the violation(s)
alleged in the
Complaint filed in this matter and referenced within Section
111.0 herein.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding ,upon the
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 asa
defense to any enforcement action taken pursuant to this
Stipulation the failure of any of its officers,
directors,
agents,
employees or successors or assigns to take such action as
shall be required to comply with the provisions of this
Stipulation.
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
4
laws or regulations ‘including, but not limited to,
the Act and
the Board regulations,
35
Ill.
Adm. Code,
Subtitles A through 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
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 the
following:
1.
Human health and the environment were threatened by the
Respondent’ s violations.
5
.There’ are social and economic benefits as to the sewer
and water systems.
3.
The sewer and water systems are suitable for the area
in which such were installed.
4.
Adequate sewer/water separation, obtaining a permit
prior to construction and compliance with its terms are both
technically practicable and economically reasonable.
5.
The violations have not yet been corrected.
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 respondent 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, respondent
because of delay in compliance with requirements,
in which case the economic benefits shall be
determined by the lowest cost alternative for
achieving compliance;
4.
the amount of monetary penalty which will serve
to
deter further violations by the respondent and to
otherwise aid in enhancing voluntary compliance
6
with this Act by the respondent and other persons
similarly subject
to the Act;
5:
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act by
the respondent;
6.
whether the respondent voluntarily self-disclosed,
in accordance with subsection
i of this Section,
the non-compliance to the Agency;
and
7.
whether the respondent has agreed to undertake
a
“supplemental environmental project,”
which means
an environmentally beneficial project that a
respondent agrees to undertake
in settlement of an
enforcement action brought under this Act,
but
which the respondent
is not otherwise legally
required to perform.
In response to these factors,
the parties state as
follows:
1.
The Respondent failed to include the sewer fOrce main
and a sewage lift station within the final plans and
specifications for the sewer system improvements of the 1992
permit issued by the Illinois EPA.,
In 1999,
the water main was
installed without adequate separation from the sewage force main
and sewage lift station.
Both violations are continuing and of a
serious nature,
as. the lack of separation between the drinking
water and sewage systems pose a risk to consumers should the
subject water and ‘sewer mains leak.
2.
Respondent was not diligent in achieving ‘compliance
with the Act and Board regulations.
3.
No economic benefit was accrued.
7
4.
Complainant has determined,
based upon the specific
facts of this matter,
that a penalty of five thousand dollars
($5,000.00)
will serve
to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
Respondent has prior adjudicated violations
of the Act
and Board regulations.
In 2000,
the Illinois Pollution Control
Board entered a complaint,
stipulation,
and proposal for
settlement filed by the Office of the Attorney General.
Respondent paid a penalty of $1,750.00 in PCB 00-201 water and
sewer separation violations ‘at the Village of Chesterfield.
6.
Self-disclosure
is not
at issue in this matter
7.
The settlement
of’ this matter does not include a
supplemental environmental project.
VIII.
TERMS OF SETTLEMENT
‘‘
A.
Penalty Payment
1.
The Respondent
shall pay a civil penalty in the sum of
five thousand dollars
($5,000.00) within thirty
(30)
days from
the date the Board adopts and accepts this. Stipulation.
The
penalty described in this Stipulation shall
be paid by certified
check, money order or electronic
funds transfer payable
to the
Illinois EPA,
designated to the Illinois Environmental Protection
Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
8
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794-9276
The name and number of the case and Respondents
Federal Employer
Identification Number
(FEIN),
3~-/~’~/?~
,
shall appear on the
check.
A copy of the certified check, money order or record of
electronic funds transfer and any transmittal, letter shall
be
‘sent to:
Environmental Bureau
Attorney General’s Office
500 South Second Street
Springfield,
Illinois
62702
Joey Logan-Wilkey
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
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 ILCS 5/1003
(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.
3.
For purposes of payment and collection,
Respondent may
be reached at the following address:
Post Office Drawer 130
9
Benton,
Illinois 62812
4.
IrX the event of default of this Section VIII.A,
the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney’s
fees.
B.
Compliance Plan
The Village of North ‘City will be required to seek
compliance.
C.
Future
Use
Notwithstanding any other language’ in this Stipulation to
the contrary,
and in considerat.ion of the mutual promises
and.
conditions contained in this Stipulation,
including the Release.
from Liability contained in Section VIII.,E,
below,
.the Respondent
hereby agrees that this Stipulation may be used against the
Respondent
in any subsequent enforcement action or permit
proceeding as proof of
a past adjudication of violation, of the
Act and the Board Regulations promulgated thereunder for all
violations alleged in the Complaint in this matter,
for purposes
of Section 39(a)
and. (i)
and/or 42(h)
of the Act,
415 ILCS
5/39(a)
and(i)
and/or 5/42(h) (2002).
Further, Respondent agrees
to waive any rights to contest,
in any subsequent enforcement
action or permit proceeding,
any allegations that these alleged
violations were adjudicated.
,
10
D.
Cease and Desist
The Respondent
shall cease and desist from future violations
of the Act and Board Regulations that were the subject matter of
the Complaint as outlined in Section 111.0
(“Allegations of Non-
Compliance”)
of this Stipulation.
E.
Release from Liability
In consideration of the Respondent’s payment of the
$5,000.00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder,
to Cease and
Desist as contained in Section VIII.D 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.
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;
11
—-
-
—
-
‘-‘
.
--
-
.
‘.—‘---
—-..-----
~J~,i~bil,~y
~
~
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
3.315 of the Act,
415 ILCS 5/3.315, or entity other than the
Respondent.
F.
Enforcement of Board 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 the 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.
.
‘
12
‘.
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
shall
remain in full
force. and effect.
WHEREFORE,
Complainant and Resp’ondent request ‘that the Board
adopt and accept the foregoing Stipulation and Proposal for
Settlement as written..
,,.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW
J. DUNN,
Chief
Environmental Enforcement/
Asbestos Litigation
Division
I
BY:
‘
DATE:
////
r/~
THOMAS DAVIS,
Chief
‘
Environmental Bureau
Assistant Attorney General
13
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
BY:
___________________
DATE:
fO~/~
~
J SEP~IE.
SVOBODA
hief Legal Counsel
LAWRENCE A.
LIPE & ASOCIATES,
INC.
BY:
DATE:
__________________
Name:
~
j
~
Title:
~(j).i~)V/~,
14
