Lisa Madigan
ATTORNEY GENERAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
April
7, 2006
Re :
People v.
Heneghan & Associates, P.C .
PCB No . 06-30
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 to me in the
enclosed, self-addressed envelope
.
Thank you for your cooperation and consideration
.
Very trulyyours,
`
Kristen L
La
aughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois
62706
(217) 782-9031
RECEIVED
CLERk'S OFFICE
APR 1 1 2006
STATE OF ILLINOIS
Pollution Control Board
KLG/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
1001 East Main, Carbondale, Illinois 62901
•
(618) 529-6400
• TTY: (618) 529-6403
•
Fax: (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
PEOPLE OF THE STATE OF
)
CLERK'S OFFICE
ILLINOIS,
>
APR 1 1 2006
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
vs
.
)
PCB No. 06-30
(Enforcement)
HENEGHAN & ASSOCIATES, P.C .,
)
an Illinois corporation,
)
Respondent.
)
NOTICE OF FILING
To :
William H. Strang
Strang & Parish, Ltd
.
Attorneys at Law
108 North LaFayette Street
Jerseyville, IL 62052
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
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: April 7, 2006
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
sion
BY: ,~
i~ KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on April 7, 2006, 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 :
William H. Strang
Strang & Parish, Ltd
.
Attorneys at Law
108 North LaFayette Street
Jerseyville, IL 62052
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 was also sent by First Class Mail with postage thereon fully prepaid to
:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
-KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
This filing is submitted on recycled paper
.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARL
RECEIVED
CLERK'S OFFICE
PEOPLE OF THE STATE OF
)
APR 1 1 2006
ILLINOIS,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
)
vs .
)
PCB No. 06-30
(Enforcement)
HENEGHAN & ASSOCIATES, P.C .,
)
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) (2004), 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) (2004). In support of
this motion, Complainant states as follows :
1
.
The parties have reached agreement on all outstanding issues in this matter
.
2 .
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion
.
3 .
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) (2004)
.
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) (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litig?tion Division
k
BY : -
j
KRISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : April 7, 2006
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARR E C E I V E D
CLERK'S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
APR 1 12006
)
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
v .
)
PCB No. 06-30
HENEGHAN & ASSOCIATES, P.C., an
)
(Enforcement - Public Water Supply)
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 Heneghan & Associates, P.C. ("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
.
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 .
(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 terms and conditions of this Stipulation and to legally
bind them to it
.
III. STATEMENT OF FACTS
A .
Parties
On August 29, 2005, 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(2004), 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 (2004)
.
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, Respondent was employed by the Calhoun
County Rural Water District (hereinafter the "District") to install water mains for the Phase III
1
Water Main Extension in Calhoun County, Illinois,
2
.
On some date or dates prior to January 5, 2004, Respondent, caused or allowed
the construction of 60,070 feet of four-inch water main and 10,575 feet of six-inch water main
for the Phase III Water Main Extension for the District without a construction permit
.
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations :
Count I:
Section 15(a) of the Act, 415 ILCS 5/15(a) (2004) and Sections 602 .101(a)
and 602.116 of the Board's Public Water Supply Permits Regulations, 35
Ill. Adm. Code 602.101(a), 602 .116 .
D .
Admission of Violations
The Respondent 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 Respondent does
not affirmatively admit the allegations of violation within the Complaint and referenced within
Section III.C herein, and this Stipulation shall not be interpreted as including such admission
.
E
.
Compliance Activities to Date
On January 5, 2004, Illinois EPA received an application for an As-Built Permit
for the newly constructed water mains . Illinois EPA issued an As-Built Permit for the water
mains on March 17, 2004
.
2
2
.
The Respondent has created a Project Check Sheet for Water Main Extensions
which is required for use on every project . Every task listed has a proposed due date, man-hour
estimate, and a box to check for when the task is complete . There is a section entitled "IEPA
Paperwork"which includes a Construction Permit Application, fees, and transmittal letter
.
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
.
1
.
No change in ownership, corporate status or operator of the facility shall in any way alter
the responsibilities of the Respondent under this Stipulation and Proposal for Settlement. In the
event of any conveyance of title, easement or other interest in the facility, the Respondent shall
continue to be bound by and remain liable for performance of all obligations under 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
3
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
:
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
.
Failure to apply for construction permits hinders the Illinois EPA's protection of
the public health and the environment
.
2 .
There is social and economic benefit to the construction of water mains
.
3
.
The water main extensions were suitable for the area in which they were installed
.
4 .
Obtaining a permit prior to construction of water mains and compliance with its
terms is both technically practicable and economically reasonable
.
4
5
.
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
:
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 ;
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 obtain a permit for construction of the water main
extensions prior to beginning construction The violations began before January 5, 2004, on dates
5
better known to the Respondent, and were resolved on March 17, 2004
.
2
.
Respondent was diligent in attempting to come back into compliance with the
Act, Board regulations and applicable federal regulations, once the Illinois EPA notified it of its
noncompliance
.
3
.
A nominal economic benefit was incurred by the delay to acquire a construction
permit prior to installation of the water mains
.
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 .
To Complainant's knowledge, Respondent has no previously adjudicated
violations of the Act .
6 .
In January 2004, the Respondent reported to Illinois EPA their failure to acquire a
construction permit
.
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 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
6
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 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
:
Kristen Laughridge
Assistant Attorney General
Environmental Bureau
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) (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
7
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
:
Heneghan & Associates, P.C .
1004 State Highway 16
Jerseyville, Illinois, 62052
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 .
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 VIILD, 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)(2004). Further, Respondent agrees to waive any rights to contest, in any subsequent
8
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 III.C
("Allegations of Non-Compliance") of this Stipulation
.
D .
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.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 other than those expressly specified in Complainant's
Complaint filed on August 29, 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
:
a .
criminal liability;
b .
liability for future violation of state, federal, local, and common laws and/or
regulations ;
9
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 .
Right of Entry
In addition to any other authority, the Illinois EPA, its employees and representatives, and
the Attorney General, her agents and representatives, shall have the right of entry into and upon
the Respondent's facility which is the subject of this Stipulation, at all reasonable times for the
purposes of carrying out inspections . In conducting such inspections, the Illinois EPA, its
employees and representatives, and the Attorney General, her employees and representatives,
may take photographs, samples, and collect information, as they deem necessary
.
F.
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 VIII.A.1. 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
10
representatives of each party, and then accompany a joint 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
.
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 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
.
1 1
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
:
THOMAS DAVIS, Chief
DATE :
Z/03
3,11
6
C
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY
: - DATE :
3
ROBERT A. MESS A
Chief Legal Counsel
HENEGHAN & ASSOCIATES, P .C
.
BY : DATE :
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