BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE.OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
vs.
REDF,EARN EARTHMOVING, INC., an
Illinois Corporation,
Respondent.
)
)
RE~K~)
APR 21 2005
S~~d
No. PCB 05-89
(Enforcement -Water)
NOTICE OF FILING
TO: Michael A. Toepfer
Vincent Roth & Toepfer P.C.
125 East Main Street
P.O. Box 685
Warren, Illinois 61087-0685
Dorothy Gunn, Clerk
Illinois Pollution Control
Board, Suite 11-500
James R. Thompson Center.
100 W. Randolph Street
Chicago, IL 60601
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board an original
and nine copies of the Stipulation and Proposal for Settlement,
an Agreed Motion for Relief from the Hearing Requirement, Notice
of Filing and a Certificate of Service, a copy of which is
attached herewith and served upon you.
DATE: April 21, 2005
Respectfully submitted,
PEOPLE OF THE STATE.OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
ZEMEHERET
~~iLk~ith
BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, IL 60601
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
-
BEFORE THE ILLINOIS POLLUTION CONTROL ~
PEOPLE OF THE STATE OF ILLINOIS,
)
APR 212005
LISA MADIG~N, Attorney General
)
STATE OF
lLL~NO~
of the State of Illinois,
)
pollution Control Board
Complainant,
vs.
)
No. PCB 05-89
(Enforcement-Water)
REDFEARN EARTHMOVING,
an Illinois corporation,
Respondent.
AGREED MOTION TO REQUEST RELIEF FROM THE HEARING REQUIREMENT
In support of this Motion, •the parties state as follows:
1. Today, the People of the State of Illinois, filed a
stipulationand Proposal for Settlement, with the Illinois
pollution Control Board.
S
2. Section 31(c) (2) of the Illinois Environmental
Protection Act, (“Act”), 415 ILCS 5/31(c) (2) (2002) provides:
Notwithstanding the provisions of subdivision (1) of
this subsection (c), whenever a 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).
. .
3. Complainant and Respondent agree that a formal hearing
is not necessary to conclude this matter and wish to avail
themselves of Section 31(c) (2) of the Act, 415 ILCS
5/31
(c)
(2)
(2002).
-o
WHEREFORE, Complainant and Respondent request relief from
the hearing requirement pursuant to Section 31(c) (2) of the Act.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
________________
AssistantZEMEHERET
BEREKET-ABAttorney
General
Environmental Bureau
.
188 W. Randolph St.., 20th Fl.
Chicago, Illinois 60601
(312) 814-3816
DATE: April 21, 2005
G:\EflVirOflTflefltal Enforcement\Z BEREKET-A~\RedfearxiAgreed Mot to Req Relief 4-21-05,wpd
9-
BEFORE THE ILLINOIS POLLUTION CONTROL BO~CE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
APR
212005
)
STATE OF ILLINOIS
Complainant,
)
. .
.
Pollution Control Board
)
v.
)
PCB05-89
)
REDFEARN EARTHMOVING, INC.,
)
(Enforcement-Water)
an Illinois
corpOration,
.
)
)
•
Respondent.
)
STIPULATION AND PROPOSAL FOR SETTLEMENT•
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by. LISA MADIGAN,
Attorney General of the State of Illihois, the Illinois Environmental Protection Agency
(“Illinois EPA”), and REDFEARN EARTHMOVING, 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 represent 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 Board Order and not to contest their validity in any
subsequent proceeding to implement or enforce their terms.
9-
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 9, 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 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.~
AtaII-times-relevant-tc-the-Complain~,Responden wasandl-s-anll-Iinoi•s —
corporation that is authorized to transact business in the State of Illinois.
B.
Site Description
1.
At all times relevant to the Complaint, Respondent was engaged in a
construction project to expand its parking lot at its office located at 1480 Route 20 West,
Elizabeth, J0 Davies County, Illinois (“Site”).
-2-
9-
2.
On May 8, 2003, the Illinois EPA inspected the construction site and
observed that the construction activity was being conducted on land estimated to be
more than one acre and less than five acres. The Illinois EPA observed that the Site did
not have any erosion controls in place and that there was evidence of erosion that had
occurred previously. The slope of the ravine was deep and erosion was evident.
3. On June 9, 2003, the Illinois EPA sent Redfearn a violation notice for
Respondent’s failure to obtain coverage under the general NPDES storm water permit
for construction site activities (“storm water NPDES permit”) for the Site.
4.
On June 16, 2003, Redfearn submitted to the Illinois EPA a notice of intent
(“Not”) for coverage under the storm water NPDES permit for the Site. The NOt
submitted by Redfearn indicated that the total size of the construction Site was
approximately five (5) acres. On July 24, 2003, the Illinois EPA granted Redfearn
coverage under the storm water NPDES permit.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions
of the Act and Board regulations:
Count I:
Water Pollution:
Violation of Section 12(f) of the Act, 415 ILCS
5112(f)(2002)
and 35 III. Adm. Code 309.1 02(a).
D.
Admission of Violations
.
The Respondent admits to the violations alleged in the Complaint filed in this
matter and referenced within Section llt.C herein.
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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 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.
V. COMPLIANCE
WITH OTHER LAWS AND REGULATIONS
This Stipulation in noway 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 III. 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:
considerationIn
making its ordersall
the
andfactsdeterminations,and
circumstancesthe
Boardbearingshallupontaketheinto
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
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5.
any subsequent compliance.
In response to these factors, Complainant states the foll6wing:
1.
Storm water runoff from the Site posed a potential threat of water pollution
to waters of the State.
2.
There is social and economic benefit to the expansion of the parking lot at
the Site.
3.
Operation of the parking lot expansion was suitable for the area where the
storm water runoff occurred.
•
4:
Complying with the requirements of the Act, Board regulations, and permit
conditions was both technically practicable and economically reasonable.
5.
Respondent is now 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 determinin~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
•
bythis 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 wilt serve to deter further
violations by the respondent and to otherwise aid in enhancing
-5-
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 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, Complainant states as follows:
1.
Evidence of erosion caused by storm water runoff at the Site was
observed at least on one occasion.
2.
As soon as Respondent was made aware of the violations, it took steps to
to comply with the requirements of the Act and Board regulations by applying for
coverage under the storm water NPDES permit.
3.
Economic benefits accrued by the Respondent are believed to be
substantially less than the $2,000.00 penalty agreed herein.
4.
The civil penalty agreed upon in this matter will serve to deter further
violations of the Act and Board regulations by Respondent and aid in enhancing
voluntary compliance with the Act and Board regulations.
5.
Complainant is presently unaware of prior enforcement actions against
Respondent.
.
6.
Self-disclosure is not at issue in this matter.
-6-
• 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 Two Thousand
Dollars ($2,000.00) within thirty (30) days from the date the Board adopts, and accepts
this Stipulation. The Respondent stipulates that payment has been tendered to
Respondent’s attorney of record in this matter in a form acceptable to that attorney.
Further, Respondent stipulates that said attorney has been directed to make the penalty
payment on behalf of Respondent, within thirty (30) days from the date the Board
adopts and accepts this Stipulation, in a manner prescribed below. 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 Respondent’s Federal Employer Identification
Number (FEIN), 36-3582724, 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:
-7-
Zemeheret Bereket-Ab
Assistant Attorney General
Environmental BureaU
188
W.
Randolph St., 20th Floor
Chicago, Illinois 60601
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. 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, money order or electronic funds transfer, payable to the Illinois EPA,
designated to the Illinois Environmental Protection Trust Fund and delivered to the
address and in the manner described above.
3.
For purposes of payment and collection, Respondent may be reached at
the following address:
,
Redfearn Earthmoving, Inc.
1480 Route 20 West
Elizabeth, Illinois 61028
4.
ln’the event of default of this Section VIll.A, the Complainant shall be
entitled to all available relief including, but not limited to, reasonable costs of collection
and reasonable attorney’s fees.
-8-
9-
B.
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 VIll.D, 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 ofthe 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.
C.
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
llI.C (“Allegations of Non-Compliance”) of this Stipulation.
D.
Release from Liability
in consideration of the Respondent’s payment of the Two Thousand Dollars
($2,000.00) penalty and any specified costs and accrued interest, and to Cease and
Desist as contained in Section VllI.C 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
-9-
other than those expressly
specified in Complainant’s Complaint filed on November 9,
2004. 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;
•
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.
E;’” Enfcrcementof~Boardc-r-der----..•--• .•.... .•- .•..-•
... .••..•...•• • ..-....•.•. .•.•..........•.,,.,,,,,
,,,,,~•,
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.
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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.
—11-
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 MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:’~~~~
__
Environmental Bur u
DATE:__________________
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
_______________
‘DATE:
A~J
d2
~7
~AIILLIAMD. IN ERS LL
U
Acting Chief Legal Counsel
REDFEARN EARTHMOVING, INC.,
an Illinois corporation,
BY:
~
DATE:
April 14, 2005
~me:
J.
William Vincent
Title:
President
G:\Enviroflfllefltai Enforcement’.Z BEREKET-AB\Redfearn Stip. & Proposal for Settlement O1.28.05.wpd
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CERTIFICATE’ OF SERVICE
I, ZEMEHERET
BEREKET-AB,
an Assistant Attorney General, do
certify that I caused to be served on this’ 21st day of April
2005, the foregoing.Notice of Filing, a Stipulation and Proposal
for Settlement, and an Agreed Motion for Relief ‘from the Hearing
Requirement, upon the persons listed ‘on said Notice by placing
‘same in an envelope bearing sufficient postage ‘with the United
States Postal Service located at 100 West Randolph Street,
Chicago, Illinois.
‘
‘
ZEMEHERET BEREKET-AB
G\EnvirOfltflerttal Enforce’ment\Z BEREKET-~B\RedfearnNOF&Certiflca~e4-21-05 .wpd
9-
