BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
)
Complainant,
)
VS.
)
)
PCB No. 06-191
LOUIE'S TRENCHING SERVICE, INC., an
1
(Enforcement-Water)
Illinois corporation, and CITY OF GALENA, an
)
Illinois municipal corporation,
)
)
Respondents.
1
NOTICE OF FILING
TO:
See attached service list
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have electronically filed with the Office of
the Clerk of the Pollution Control Board a Motion to Request Relief
from Hearing, and a
Stipulation and Proposal for Settlement as to Respondents Louie's Trenching Service and
City of Galena, a copy of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney General of the State of Illinois
By:
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(3 12) 814-0660
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 27, 2006
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SERVICE LIST
City of Galena
Tom
Brusch, Mayor
3 12
%
North Main Street
Galena, Illinois 61 036
Louis A. Timp, Registered Agent
Louie's Trenching Service
9720 Rte. 20
W.
Galena, Illinois 61 036
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 27, 2006
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
1
Complainant,
1
VS.
1
1
PCB No. 06-191
LOUIE'S
TRENCHING SERVICE, INC., an
)
(Enforcement-Water)
Illinois corporation, and CITY OF GALENA,
an
)
Illinois municipal corporation,
)
)
Respondents.
)
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
hearing requirement in the above
-captioned matter. In support thereof, the Complainant
states as follows:
1.
On June 27,2006, the Complaint was accepted for hearing by the
Pollution Control Board (
"Board") in this matter. On June 27,2006, a Stipulation and
Proposal for Settlement as to Respondents, Louie's Trenching Service, Inc. and City of
Galena, was filed with the Board. If accepted, the Stipulation and Proposal for
Settlement with Respondents Louie's Trenching Service, Inc. and City of Galena, will
dispose of the case.
2.
Section
31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS
513 1(c)(2) (2004), allows the parties in certain enforcement cases to request relief
from the mandatory hearing requirement where the parties have submitted to the Board a
stipulation and proposal for settlement. Section 3
1(c)(2) 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
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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 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 2 1 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 currently scheduled in the instant case.
4.
The Complainant requests the relief conferred by Section 3
l(c)(2) of the
Act.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA
MADIGAN, Attorney General of the State of Illinois, requests relief from the
requirement of a hearing pursuant to 415 ILCS
5/31(c)(2) (2004).
Respecthlly submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney General of the State of Illinois
By:
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(3 12) 8
14-0660
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 27, 2006
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
1
PCB 06-lql
v.
)
(Enforcement
-
Water)
1
)
LOUIE'S TRENCHING SERVICE, INC., an
Illinois corporation, and CITY OF GALENA, an
)
Illinois municipal corporation,
Respondents.
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 LOUIE'S TRENCHING SERVICE, INC., an Illinois corporation, and CITY OF GALENA,
an Illinois municipal corporation, 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
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regarding the claims asserted in the Complaint except as otherwise provided herein. If the Board
approves and enters this Stipulation, Respondents agree 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"), 41 5 ILCS 511
et seq.
(2004).
11.
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.
111.
STATEMENT OF FACTS
A.
Parties
1.
On
,
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
3 1 of the Act, 41 5 ILCS
513 1 (2OO4), against the Respondents.
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2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act,
41 5 ILCS 514 (2004).
3.
At all times relevant to this Stipulation, Respondent, Louie's Trenching Service,
Inc. (
"LTS"), was and is an Illinois corporation in good standing.
4.
At all times relevant to this Stipulation, Respondent, City of Galena (
"Galena"),
was and is a municipal corporation duly organized and existing under the laws of the State of
Illinois.
B.
Site Description
1.
At all times relevant to this Stipulation, Respondent, Galena, has owned 6.3 acres
located just south of Route 20, along the east
bank of the Galena River, in the City of Galena, Jo
Daviess County, Illinois (
"Site").
2.
On May 30, 2003, the Illinois EPA issued to Galena National Pollutant Discharge
Elimination System (
"NPDES") Permit No. ILRlOB623, granting coverage under the NPDES
general permit to discharge storm water during construction site activities.
3.
On a date prior to October 18, 2004, Galena hired LTS to construct the Galena
Recreational Greenway, a bicycle path along the Galena River, at the Site and provided LTS with a
Storm Water Pollution Prevention Plan (
"SWPPP") prepared on behalf of the City by MSA
Professional Services Inc. The SWPPP required LTS to install sediment and erosion control fences
and rock check dams. It also required LTS to inspect all such controls at least once each week.
, ,
C.
Allegations of Non-Compliance
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Complainant contends that the Respondents, LTS and Galena, have violated the
following provisions of the Act and Board regulations:
Count I:
Water Pollution
Violation of Section
12(a) of the Act, 415 ILCS 5/12(a) (2004).
Count
11:
Violation of NPDES Permit
Violation of Section
12(f) of the Act, 415 ILCS 5/12(f) (2004), and
Section
309.102(a) of the Board Water Pollution Regulations, 35 Ill.
Adm. Code
3Og.l02(a).
D.
Admission of Violations
The Respondents, LTS and Galena, admit to the violations alleged in the Complaint filed
in this matter and referenced within Section
1II.C herein.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the
Respondents, LTS and Galena, and any officer, director, agent, or employee of the Respondents,
as well as any successors or assigns of the Respondents. The Respondents, LTS and Galena,
shall not raise as a defense to any enforcement action taken pursuant to this Stipulation the
failure of any of their officers, directors, agents, employees or successors or assigns to take such
action as shall be required to comply with the provisions of this Stipulation.
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V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of the Respondents, LTS and
Galena, 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. Adrn. Code, Subtitles A through H.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-
COMPLIANCE
Section 33(c) of the Act, 41 5 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
sourceto 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.
Respondents' violations threatened human health and the environment.
Respondents' violations resulted in the threat of discharge of sediment
-laden storm water into the
Galena River
fiom at least November 1,2004 through March 18,2005.
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2.
The Galena Recreational Greenway has a social and economic benefit.
3.
The Galena Recreational Greenway is suitable for the area in which it is located.
4.
Properly implementing the erosion control requirements contained in the SWPPP,
and displaying the SWPPP at the Site and at the Galena City Hall was both technically
practicable and economically reasonable.
5.
Respondents, LTS and Galena, have subsequently complied with the Act and the
Board Regulations.
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 41 5 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;
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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 Respondents failed to properly implement the SWPPP at the Site, which
resulted in the threatened discharge of silt-laden
storm water from at least November 1, 2004 to
March
18, 2005. Additionally, Plaintiff alleges that on November
1,
2004, the SWPPP was not
available at the Site, nor was a SWPPP available on that date upon inquiry by the Illinois EPA
from the Galena City Hall.
2.
Respondents were diligent in attempting to come back into compliance with the
Act and Board regulations, once the Illinois EPA notified them of their noncompliance.
3.
The failure to properly install the erosion controls at the Site resulted in little or no
economic benefit to the Respondents. The penalty obtained negates the economic benefit
accrued as a result of
~es~onde&'
noncompliance.
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Nine Thousand Dollars ($9,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant's knowledge, Respondents, LTS and Galena, have no previously
adjudicated violations of the Act.
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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 Respondents, LTS and Galena, shall pay a civil penalty in the sum of Nine
Thousand Dollars ($9,000.00) within thirty (30) days from the date the Board adopts and accepts
this Stipulation. Each Respondent shall pay Four Thousand Five Hundred Dollars ($4,500.00).
The Respondents, LTS and Galena, stipulate that payment has been tendered to Respondents',
LTS and Galena, attorneys of record in this matter in a form acceptable to those attorneys.
Further, Respondents, LTS and Galena, stipulate that said attorneys have been directed to make
the penalty payment on behalf of Respondents, LTS and Galena, 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
102 1 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794-9276
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The name and number of the case and Respondent's, LTS, Federal Employer Identification
Number (FEIN), 36
-3003209, shall appear on LTS' check. The name and number of the case
and Respondent's, Galena, FEIN, 366005888,
shal1,appear on Galena's check. A copy of the
certified check, money order or record of electronic funds transfer and any transmittal letter shall
be sent to:
Katherine
M. Hausrath
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.,
2oth Floor
Chicago, Illinois
6060 1
James Allen Day
Assistant Counsel
Illinois Environmental Protection Agency
102 1 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
withm the time period prescribed above at the maximum rate
allowable under Section
1003(a) of the Illinois Income Tax Act, 35 ILCS 511003 (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.
9
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3.
For purposes of payment and collection, Respondent, LTS, may be reached at the
following address:
Louie's Trenching Service
Louis
A.
Timp, Registered Agent
9720 Rt. 20
W.
Galena, Illinois 6 1036
4.
For purposes of payment and collection, Respondent, Galena, may be reached at
the following address:
Tom Brusch, Mayor
City of Galena
3 12
%
North Main Street
Galena, Illinois 6 1
03 6
Andy Lewis, City Engineer
City of Galena
3 12
%
North Main Street
Galena, Illinois 61 036
5.
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 Respondents, LTS and Galena,
hereby agree that this Stipulation may be used against the Respondents in any subsequent
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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) andor 42(h) of the Act, 415 ILCS 5/39(a) and(i)
andor 5/42(h)(2004). Further, Respondents LTS and Galena, agree 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 Respondents, LTS and Galena, shall cease and desist from future violations of the
Act and
Boai-d 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 Respondents' payment of the $9,000.00
penalq
J
and an!
y
specified
costs and accrued interest, 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 Respondents
fiom 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
.
The
Complainant reserves, and this Stipulation is without prejudice to, all rights of the State of
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Illinois against the Respondents, LTS and Galena, 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
andlor
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
3.3.1 5 of the Act,
41
5 LCS 513.3 15, or entity other than the Respondents.
E.
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.
Respondents, LTS and Galena, agree 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 waive any requirement of service of process.
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3.
The parties agree that, if the Board does not approve and accept this Stipulation
and Proposal for Settlement, then no party is bound by the terms herein.
4.
It is the intent of the Complainant and Respondents 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 REST OF THIS PAGE LEFT INTENTIONALLY BLANK)
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WHEREFORE, Complainant and Respondents, LTS and Galena, 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, Chef
Environmental Enforcement/
Asbestos Litigation Division
BY:
Environmental Bureau
DATE:
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
A
BY:
ROSERT
A.
MES
Chief Legal Counsel
LOUIE'S TRENCHING SERVICE, INC., an Illinois
corporation,
BY:
Title:
C0rro,
SeC,
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CITY OF GALENA, an Illinois municipal
corporation,
BY:
J
DATE:
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CERTIFICATE OF SERVICE
I, KATHERINE M. HAUSRATH, an Assistant Attorney General, do certify that I
caused to be mailed this 27 day of June, 2006, the foregoing Motion to Request Relief
from Hearing, Stipulation and Proposal for Settlement as to Respondents Louie's
Trenching Service,
Inc. and City of Galena, and Notice of Filing, upon the persons listed
on said notice, by certified mail.
Assistant Attorney General
Environmental Bureau
188 West Randolph, 2oth Floor
Chicago, IL 60601
3 12-8 14-0660
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