OFFICE OF THE A1TORNEY GENERAL
STATE OF ILLINOIS
1~Er~!D
CLERK’S O~CE
STATE OF
ILLiNOIS
Pollution Control Board
December 23, 2004
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
Re:
People v. Furlong Excavating, 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
• TTY:
(217) 785-2771
•
Fax:
(217)
782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (312) 814-3374 • Fax: (312) 814-3806
100! East ~\lain,Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416
Lisa Madigan
A’ITORNEY GENERAL
isten LaugF~ridge
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
)
0C 2 ~2O~4
ILLINOIS,
/
)
Pollution
S~A
-IEOFControlILLINOISBoard
Complainant,
vs.
)
PCB No. 05-96
)
(Enforcement)
FURLONG EXCAVATING, INC.,
)
an Illinois corporation,
)
Respondent.
NOTICE OF FILING•
To:
FURLONG EXCAVATING, INC.
an Illinois corporation
do
Brad D. Furlong
-
R.R.
1, Box 71-C
Kell, IL 62853-9725
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 servecFupon 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
L9~ls~n
/
KRIST ~U
GH~ E
Assista
Attorne
eneral
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
21 7/782-9031
Dated: December 23, 2004
CERTIFICATE OF SERVICE
I hereby certify that I did on December 23, 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:
FURLONG EXCAVATING, INC.
an Illinois corporation
c/o Brad D. Furlong
R.R. 1, Box 71-C
Kell, IL 62853-9725
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 of ~sosentbyRrst Class Ma~with postage thereon fully prepaid to:
Carol Webb
Hearing Officer
Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
~
This filing is submitted on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REcr~vFDCLEHIç5
9 ~OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF IL
LINOIS
Complainant,
)
Poilutlon Control 5o~rd
v.
)
PCB NO. 05-96
)
(Enforcement)
FURLONG EXCAVATING, INC.,
)
an Illinois corporation,
)
Respondent.
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.
On November 17, 2004, Complainant filed a Complaint with the Board, alleging
violations by the Respondent of the Illinois Environmental Protection Act and Board
Regulations.
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, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(1) of the Act, 415 ILCS 5/31(c)(1) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: December 23, 2004
Assistant
Attorney General
2
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARtLERK’so~F~~
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
C~C
OF
2~
ILL
2a04
Poljut~onControlBoard
Complainant,
PCB
05-96
v.
(Enforcement)
FURLONG EXCAVATING, INC., an•
Illinois
Corporation,
Respondent.
STIPULATION AIJD 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 Furlong
Excavating, Inc. (“Respondent”)
,
have agreed to the making of
this Stipulation and Proposal for Settlement (“Stipulation”) and
submit it to theIllinois 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 November 17, 2004, 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), 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 was
and is an Illinois corporation that is authorized to transact
business in the State of Illinois.
B. Site Description and History
In 1999,
the Village of North City in Franklin County,
Illinois employed Furlong Excavating, Inc. to construct and
install a 6-inch water main. The water main was installed within
less then the required ten feet of horizontal separation of an
existing two-inch sewage force main and a sewage lift station,
which is not in compliance with Illinois EPA standards and
accepted engineering practices.
-
C. Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count II:
Improper water and sewer main separation, in
violation of Section 18(a) (2) of the Act, 415 ILCS
5/18(a) (2) (2002), 35 Iii.
Adm.
Code 602.101(b), and
35 I11.Adm. Code Section 653.119(b) (1) (A).
3
D. Admission of Violations
The Defendant represents that it has entered into this
Stipulation for the purpose of settling and compromising disputed
claims without having to incur the expense of contested
litigation. By entering into this Stipulation and complying with
its terms, the Defendant does not affirmatively admit the
allegations of violation within the Complaint, and this
Stipulation shall not be interpreted as including such admission.
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-.
Tha. RespondentshaJlnot~raise~as.a~
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.
4
V. COMPLIANCE WITH OTHER LAWS A~D 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 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;
___
..~h
~
value
f the pollution
source;
~.
the suit~bil±ty rUh~üitability 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:
5
1.
Human health and the environment were threatened by the
Respondent’ s violations.
2.
There are social and economic benefits as to the water
systems.
3. The water systems are suitable for the area in which
such were installed.
4.
Complying with Illinois
EPA standards and accepted
engineering practices
for water main construction
are both
technically practicable and economically reasonable.
5.
The Respondent has subsequently been in compliance.
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 ~.riolation;
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;
-
6
4. the amount of monetary penalty which will serve to
deter further violations by the respondent and to
otherwise aid in enhancing voluntary compliance
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 ±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 installed a water main within ten feet
of a sewage main and lift station,
thereby not complying with
Illinois EPA standards and accepted engineering practices.
violations
are of a serious nature, for the close proximity of
sewage and water mains poses a risk to consumers and drinking
water systems.
2. Compliance was achieved by the Village of North City
and Lawrence A. Lipe & Associates.
3.
No economic benefit was accrued.
4. Complainant has determined, based upon the specific
facts of this matter that a penalty of five hundred dollars
7
-
(500.00) will serve to deter further violations
and aid in future
voluntary compliance with the Act and Board regulations.
5. Respondent has no prior adjudicated violations of the
Act and. Board regulations.
-
6.
Self-disclosure
is not at issue in this matter
7.
The settlement of this matter does include a
supplemental environmental project (SEP)
.
The SEP is discussed
below in Section VIII.A.
VIII.
TERMS OF SETTLEMENT
-
- -
A. Supplemental Enviroxmental Project
1. In order to promote the goals of the Act to restore,
protect and enhance the quality of the environment, Respondent
shall perform the following supplemental environrn~ntalproject
(“SEP”)
.
The value of the SEP is two thousand dollars
($2,000.00)
.
The parties agree that this SEP consists of a
monetary donation of two thousand dollars ($2,000.00) to the
-
Benton School District Greening Program. The Respondent shall
pay the donation to the Benton School District Greening Program
within thirty (30) days from the date the Board adopts and
accepts this Stipulation.
B.
Penalty Payment
1. The Respondent shall pay a civil penalty in the sum of
five hundred dollars ($500.00) within thirty (30) days from the
8
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
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)
~
~
the
check. A copy of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be
sent to:
Kristen Laughridge
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
9
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:
Wham & Wham
212 E. Broadway
P.O.
Box 549
Centralia, IL 62801
4.
In the event of default
of
Section VIII.A or Section
VIII.B, the Complainant shall be entitled to all available relief
including, but not limited to, reasonable costs of collectio.n and
reasonable attorney’s fees.
C. Compliance Plan
eL has
since been brought into compliance.
--
D.
Future Use
Notwithstanding
any other language in this Stipulation to
the contrary, and in consideration of the mutual promises and
conditions contained in this Stipulation, including the Release
from Liability contained in Section VIII.F, 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
10
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.
-
E.
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 III.C (“Allegations
of Non-
Compliance”) of this Stipulation.
F. Release from Liability
.
In consideration of the Respondent’s payment of the
$2,000.00 SEP, $500.00 penalty 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
11
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;
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
3.315 of the Act, 415 ILCS 5/3.315, or entity other than the
-
Respondent.
-.
~
_~
G.
Execution of
Document
-
-
...
This Stipulation shall I~ecomeeffective only when executed
by all parties and approved by the Board. This Stipulation may
be executed by the parties in one or more counterparts, all of
which taken together, shall constitute one and the same
instrument.
12
H. 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.
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
Respondent request that the Board
adopt and accept the foregoing Stipulation
and Proposal for
Settlement as written.
13
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/
-
Asbestos Litigation Division
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
DATE:
/~-/~
-~-/~‘~
DATE:________
FURLONG EXCAVATING, INC...
BY:
.-
DATE:
~
0 ~
L
Name:
Title:
I
BY
E. SVOBODA
.ef Legal Counsel
14
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