BEFORE THE ILLINOIS POLLUTION CNTRO BAR

BEFORE THE ILLINOIS POLLUTION CNTRO

BAR

PEOPLE OF THE STATE OF ILLINOIS,)

Complainant,)

VS.

)

No. PCB 06-44

)

(Enforcement

Public

WEIS BUILDERS,

INC.,

)

Water Supply)

a Minnesota corporation,)

Respondent.

)

VIA ELECTRONIC FILING

NOTICE OF FILING

TO:

Leonard

L. Burridge

Dorothy Gunn, Clerk

General Counsel

Illinois Pollution Control Board

Weis Builders, Inc.

James R. Thompson Center

7645

Lyndale Avenue South

100 W. Randolph Street, Suite 11-500

Minneapolis, Minnesota 55423

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.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

BY:

__________

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Fl.

Chicago,

IL.

60601

(312) 814-3816

DATE:

November

2005

THIS FILING IS SUBMITTED ON RECYCLED PAPER

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,)

Complainant,)

VS.

)

No. PCB 06-44

)

(Enforcement

Public

WETS BUILDERS, INC.,

)

Water Supply)

a Minnesota corporation,)

Respondent.)

AGREED MOTION TO REQUEST RELIEF

FROM THE HEARING REQUIREMENT

In support of this Motion, the parties state as follows:

Today, the People of the State of Illinois, filed a Stipulation and Proposal for

Settlement, with the Illinois Pollution Control Board.

Section 3 1(c)(2) of the Illinois Environmental Protection Act, ("Act"), 415 TLCS

5/3 1(c)(2)(2004) 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).

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)(2004).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005

WHEREFORE, Complainant and Respondent request relief from the hearing requirement

pursuant to Section 3 1

(c)(2) of the Act.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

MATTHEW

DUNN, Chief

Environmental Enforcement/

Asbestos Litigation Division

ROSEMARIE CAZEAU, Chief

Environmental Bureau

BY:

______

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Fl.

Chicago, Illinois 60601

(312) 814-3816

DATE:

November'7, 2005

G nvonralEnfocannt'

BEREKUr.ABMWeis

Agree Me to Req

Reief

Il-07-e5.wpd

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,)

Complainant,)

)

PCB 06-44

V.)

)

(Enforcement

Public

WEIS BUILDERS, INC.,

)Water

Supply)

a Minnesota corporation,)

Respondent.)

STIPULATION AND PROPOSAL FOR SETTLEMENT

Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney

General of the State of Illinois, and WEIS BUILDERS, 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 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.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005

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.

(2004).

II.

AUTHORIZATION

The undersigned representatives for each party certify that they are fully authorized by

the party whom they represent to enter into the termns and conditions of this Stipulation and to

legally bind them to it.

III. STATEMENT OF FACTS

Parties

On September 20, 2005, a Complaint was filed on behalf of the People of the

State of Illinois by Lisa Madigan, Attorney General of thb State of Illinois, on her own motion,

pursuant to Section 31 of the Act, 415 ELCS

5/31(2004),

against the'Respondent.

At all times relevant to the Complaint, Respondent Weis Builders, Inc. ("Weis")

was and is a Minnesota corporation that is authorized to transact business in the State of Illinois.

Site Description

At all times relevant to this Stipulation, Home Depot U.S.A., Inc. owned and

operated the Home Depot store number 1989,located at 143rd Street and Bell Road, Homer

Township, Will County, Illinois ("construction site" or "project").

On August 31, 2003, Home Depot, as the owner of the project, applied for a

construction permit for the installation of an 88 linear feet of 6-inch water main extension and

2,303 linear feet of 10-inch main to serve its new Home Depot store at the construction site.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005

Respondent, Weis, was retained by Home Depot to install the water mains at the

construction site.

On September

2003, the Illinois EPA inspected the construction site and

discovered that Weis through its subcontractors had already installed the water main at the

project without first waiting for and obtaining the required construction permit from the Illinois

EPA.

On October 1, 2003, the Illinois EPA issued, after the fact, "As-Built" Plans

Construction Permit No. 043 1

-FY2004 to Home Depot.

Allegations

of Non-Compliance

Complainant contends that the Respondent has violated the following provisions of the

Act and Board regulations:

Count I:

Construction of Potable Water Lines Without a Construction Permit, in

violation of Section 18(a)(3) of the Act, 415 IILCS 5/18(a)(3)(2004), and

3 5 III. Adm. Code 602. 101 (a).

Non-Admission

of Violations

Respondent Weis 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, Respondent Weis does

not affinnatively admit the allegations of violation within the Complaint and referenced within

Section THI.C herein, 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.

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)(2004), 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:

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

the sdcial and economic value of the pollution source;

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;

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

any subsequent compliance.

In response to these factors, Complainant states the following:

Human health and the environment were threatened and the Illinois EPA's

information gathering responsibilities hindered by the Respondent's failure to first obtain a

construction permit prior to construction of the water mains.

There is social and economic benefit to the Home Depot store.

Operation of the Home Depot store is suitable for the area in which it is located.

Waiting for the issuance of the construction permit prior to construction of the

water mains at the construction site and compliance with its terms was both

technically

practicable and economically reasonable.-

Respondent has subsequently complied with the Act and the Board Regulations.

VII. CONSIDERATION OF SECTION 42(h) FACTORS

Section

42(h)

of the Act,

415

ILCS 5/42(h)(2004),

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:

the duration and gravity of the violation;

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;

any economic benefits accrued by the respondent because of delay

in compliance with requirements, in which case the economfic

benefits shall be determined by the lowest cost alternative for

achieving compliance;

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;

the number, proximity in time, and gravity of previously

adjudicated violations of this Act by the respondent;

whether the respondent voluntarily self-disclosed, in accordance

with subsection i of this Section, the non-compliance to the

Agency; and

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:

Construction of water mains without first obtaining a permit from the Illinois

EPA is a significant violation.

However, the violation was short lived.

The violation was

discovered on September 4, 2003, and was corrected with the issuance of "As-Built" permit on

Octobe r 8, 2003.

Respondent did not show due diligence in attempting to comply with the

requirements of the Act and Board regulations.

The Ten Thousand Dollars ($

10,000.00) penalty agreed to herein, negates the

economic benefits accrued by the Respondent by its failure to wait for the issuance of the

construction permit.

Complainant has determined, based upon the specific facts of this matter, that a

penalty of Ten Thousand Dollars ($1 0,000.00) will serve to deter further violations and aid in

future voluntary compliance with the Act and Board regulations.

Complainant is not aware of any previous violations by Respondent.

Respondent Weis did not voluntarily disclose the violations in-this matter.

The settlement of this matter does not include a supplemental environmental

project.

VIII.

TERMS OF SETTLEMENT

Penalty Payment

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 acceptfible 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 or money order

made payable to the "Illinois Attorney General State Projects and Court Ordered Distribution

Fund" and sent by first class mail to:

Phyllis Dunton

Environmental Bureau

188 W. Randolph St., 20'I

Floor

Chicago, Illinois 60601

The name and number of the case and Respondent's Federal Employer Identification Number

("FEIN") shall appear on the face of the check.

A copy of the certified check or money order

and any transmittal letter shall be sent to:

Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20'h Floor

Chicago, Illinois 60601

Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2004), 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

(2004).

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.

For purposes of payment and collection, Respondent may be reached at the

following address:

Leonard L. Bumrdge

Weis Builders, Inc.

7645 Lyndale Avenue South

Minneapolis, Minnesota

55423

In the event of default of this Section VMlLA, the Complainant shall be entitled to

all available relief including, but not limited to, reasonable costs of collection and reasonable

attorney's fees.

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 VIEID, 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 ELCS 5/39(a) and(i) and/or

5/42(h)(2004).

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.

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 TII.C

("Allegations of Non-Compliance") of this Stipulation.

Release from Liability

In consideration of the Respondent's payment of the $1

0,000.00 (Ten Thousand Dollars)

penalty and any specified costs and accrued interest, its commitment, to Cease and Desist as

contained in Section VIII.C. herein, 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 filed on September 20, 2005. 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:

criminal liability;

liability for future violation of state, federal, local, and common laws and/or

regulations;

liability for natural resources damage arising out of the alleged violations; and

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 ELCS 5/3.3

(2004), or entity other than the

Respondent.

Correspondence, Reports and Other Documents

Any and all correspondence, reports and any other documents required under this

Stipulation, except for payments pursuant to Sections VII.A. 1. ("Penalty Payment") of this

Stipulation shall be submitted as follows:

As to the Complainant

Zemeheret Bereket-Ab

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20~"

Floor

Chicago, Illinois 60601

As to the Respondent

Leonard L. Burridge

General Counsel

Weis Builders, Inc.

7645

Lyndale

Avenue South

Minneapolis, Minnesota 55423

Modification of Stipulation

The parties may, by mutual written consent, agree to extend any compliance dates or

modify the terms of this Stipulation.

A request for any modification shall be made in writing

and submitted to the contact persons identified in Section VIIJ.E.

Any such request shall be

made by separate document, and shall not be submitted within any other report or submittal

required by this Stipulation.

Any such agreed modification shall be in writing, signed by

authorized representatives of each party, and then accompany ajoint motion to the Illinois

Pollution Control Board seeking a modification of the prior order approving and accepting the

Stipulation to approve and accept the Stipulation as amended.

Enforcement of Board Order

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.

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.

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.

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.

[The remainder of this page is left blank intentionally.I

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

DUNN, Chief

Environmental Enforcement!

Asbestos Litigation

Division

Environmental Bureau North

Assistant Attorney General

WEIS BUILDERS, INC.

BY:

DATE:

Name:

/tA-ss4wc'M

tV44ZA'C

Title:___________________

GAEnvlrone~tm

Enfor..ntZ BEREKET-AB&WisBlder

Sspuato

913C.

CERTIFICATE OF SERVICE

ZEMEHERET BEREKET-AB3, an Assistant Attorney General, do certify that I caused

to be served on this

7h1

day of November 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 1 00 West Randolph Street, Chicago, Illinois.

ZEMEHERET BEREKET-AB

G:Envtnmeta

Enforcmnet'

B2REKET.ABfiWeisNOF&Certfiat

1I-07-05.wpd

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 7, 2005