1. RECEIVED
    2. RECEIVED
RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
252005
PEOPLE OF THE STATE OF ILLINoIS,
)
Po!uAtToEnbcFor~~1~sO~
Complainant,
PCB 01-115
v.
(Enforcement)
VALLEY PETROLEUM,
INC.
an
Illinois corporation,
Respondent.
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today, July 25,
2005,
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 ?~PIDIGAN
/
ttor~ey General/of the
t
~
of Illinos
BY:
/
A
4
~
~
GRANT
AF5\stant
Attorney
General
Ezv4ronmental
Bureau
188
W.
Randolph
St.,
20~ Flr.
Chicago,
IL
60601
(312)
814-5388
RECEIVED
BEFORE
THE
ILLINOIS POLLUTION
CONTROL
BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL
252005
STATE OF ILLINOIS
Pollution Control Board
Complainant,
PCB
01-115
v.
(Enforcement)
VALLEY
PETROLEUM,
INC.
an
Illinois corporation,
Respondent.
MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT
NOW
COMES
the
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
by
LISA
MADIGAN,
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 Respondent, VALLEY PETROLEUM,
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)
,
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)
.
Unless the Board,
in its
—1—
discretion,
concludes that a hearing will be held,
the Board shall cause notice of the stipulation,
proposal and request for relief to be 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)
BY:
Respectfully submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
by LISA MADIGAN,
Attorney General
of the
State
of Illinois
C~ISTOPHER
GRANT
AMistant Attorney General
Environmental Bureau
188 W. Randolph St.,
#2001
Chicago, Illinois
60601
(312)
814-5388
Chief
forcement/Asbestos
-2-
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
252005
PEOPLE OF THE
STATE OF ILLINOIS,
)
.
STATEOFILLINOIS
Pollution
Control Board
Complainant,
PCB
01-115
v.
(Enforcement)
VALLEY
PETROLEUM,
INC.
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 Illinois,
the Illinois
Environmental Protection Agency
(“Illinois EPA”),
and VALLEY
PETROLEUM,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
1
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.
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
February
15,
2001,
a
Complaint
was
filed
on
behalf
of the People of the State
of Illinois by the Attorney General
of
the State of Illinois,
on her own motion and upon the request of
2
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
1.
At
all
times
relevant
to
the
Complaint,
Respondent
owned and operated a service station facility located at 260
Schmale Road,
Carol
Stream,
DuPage County,
Illinois
(“site”)
.
At
the Site,
Respondent operates several underground petroleum
product storage
tanks.
2.
On March
14,
2000,
the Respondent reported the release
of diesel
fuel
from the Site.
3.
On March
15,
2000,
at the request of the Carol Stream
Fire Department,
Illinois EPA inspectors investigated
a report of
petroleum vapors in an office building adjacent to the Site.
The
Illinois EPA inspectors also found that the Respondent had
recently removed more than 500 gallons of
free petroleum product
from the sump around its underground storage tanks.
3
C.
Allegations
of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions
of the Act and Board regulations:
Count
I:
AIR POLLUTION,
in violation of Section
9(a)
of
the Act,
415 ILCS 5/9(a) (2002);
Count
II:
WATER POLLUTION,
in violation of Section 12(a)
of
the Act,
415
ILCS 5/12(a) (2002);
Count
III:
CREATING A WATER POLLUTION HAZARD,
in violation
of Section 12(d)
of the Act,
415 ILCS 5/12(d)
(2002)
Count
IV:
VIOLATION OF UST RELEASE 20-DAY AND 45-DAY
REPORTING REQUIREMENTS,
in violation of Section
57.6 of the Act,
415 ILCS 5/57.6
(2002),
and 35
Ill.
Adm.
Code 732202;
Count
V:
VIOLATION OF UST RESPONSE REQUIREMENTS,
in
violation of Section 57.6 of the Act,
415
ILCS
5/57.6
(2002),
and 35
Ill.
Adm.
Code 732.300;
Count VI:
FAILURE TO FILE FREE PRODUCT REPORT,
in
violation of Section
57.6 of the Act,
415 ILCS
5/57.6
(2002),
and 35
Ill.
Adm.
Code 732.302(d).
D.
Admission of Violations
The Respondent neither admits nor denies the violations
alleged
in the Complaint filed in this matter and referenced
herein.
E.
Compliance Activities
to Date
The Respondent has identified and eliminated a previously
unknown petroleum migration pathway, performed free product
4
removal, and obtained a “No Further Action”
(“NFA”)
letter from
Illinois EPA.
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 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:
5
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.
Petroleum and vapors migrated through
a previously-
unknown abandoned sewer line to an adjacent building,
creating a
nuisance and creating a threat
to human health.
2.
The parties agree that operation of Respondent’s
business
at the Site is of social and economic benefit.
3.
Operation of the facility is suitable for the area
in
which
it occurred, provided releases of petroleum are quickly and
effectively remediated.
6
4.
Operation of Respondent’s facility in compliance with
applicable UST regulations is both technically practicable and
economically reasonable.
5.
Respondent has addressed the petroleum release, and has
obtained an NFR letter from Illinois EPA.
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
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;
7
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.
Complainant has alleged that Respondent violated the
Act and pertinent regulations on at least March
14 and March
15,
2000.
Complainant believes the off-site migration of petroleum
represents
a high degree of gravity.
2.
Respondent was diligent in attempting to come back into
compliance with the Act, Board regulations and applicable federal
regulations,
once the release of petroleum was discovered.
In
addition,
Complainant notes that although the release of
petroleum from Respondent’s tanks
is not disputed,
the migration
pathway which likely created vapor problems off site was unknown
to Respondent,
Illinois EPA,
and municipal authorities until
November,
2003, when it was discovered during an unrelated
excavation.
3.
At the time of the March
14,
2000 release report,
the
Respondent was already enrolled in the LUST program,
and had
expended approximately Two Hundred Thousand Dollars
8
($200,000.00)in reimbursable remediation expenses.
Complainant
does not believe that Respondent realized any significant
economic benefit from the alleged violations.
4.
Complainant has determined, based upon the specific
facts of this matter,
that a penalty of Ten Thousand Dollars
($
10,000.00)
will serve to deter further violations and aid
in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant’s knowledge,
the Respondent has no
previously adjudicated violations
of the Act.
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
Ten Thousand Dollars
($10,000.00)
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
9
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),
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:
CHRISTOPHER GRANT
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago,
Illinois 60601
MARK GURNIK
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
10
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:
C/O Mr. Michael Lacey
122 West 22d Street,
Site 30
Oak Brook,
Illinois 60523
4.
In 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.
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
11
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.
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
$10,000.00 penalty and any specified costs and accrued interest,
commitment to Cease and Desist
as contained in Section VIII.E,
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
12
matters other than those expressly specified in Complainant’s
Complaint
filed
on
February
15,
2001.
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, o~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
(2002),
or entity other than
the Respondent.
G.
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
13
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.
14
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:
___________________________
ROSEMARIE
CAZEAU,
Chief
DATE:
Environmental
Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
_______________________
DATE:
WILLIAM
INGERSOLL
Acting Chief
Legal Counsel
15
FOR
RESPONDENT
VALLEY
PETROLEUM,
INC.
BY:
________________________
DATE
Name:
______________________
Title:
______________________
16
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
CI.
DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
~
DATE:
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
4J/4~q
ft
J&ff.kZôif
DATE
:~7Tcsz
/7’
2-80
r
WILLIAM
INGERSOL
Acting Chief Legal Counsel
15
FOR RESPONDENT VALLEY PETROLEUM,
INC.
BY:
_______________________
DATE:
7~ 7. &S.
Name:
Title:
16
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
Complainant,
PCB 01-115
v.
(Enforcement)
VALLEY PETROLEUM,
INC.
an
Illinois corporation,
Respondent.
CERTIFICATE OF SERVICE
I,
CHRISTOPHER GRANT,
an attorney,
do certify that I caused
to be served this 25th day of July,
2005,
a Stipulation and
Proposal for Settlement and Motion
to Waive the Requirement of
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. Ran
Iph,
Chicago
Illinois and addressed
to:
CHRISTOPHER GRANT
Service List:
Mr. Michael Lacey
Lacey & Associates
1301 West 22d Street
Oak Brook
IL 60523
Hearing Officer Bradley
P.
Halloran
Illinois Pollution Control Board
hand
delivery

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