BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
)
V.
)
PCB NO.
06-183
(Enforcement
-
Wat'er)
LAZAR BROTHERS TRUCKING, INC.,
Respondent.
)
NOTICE OF FILING
TO: See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the 'office
of the Clerk of the Illinois Pollution Control Board by
electronic filing the following Stipulation and Proposal for
Settlement and Motion for kelief from Hearing Requirement,
copies of which are attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
BY:
Environmental Bureau
188
W. Randolph St.,
2oth
Floor
Chicago, Illinois
60601
312-814-5361
DATE: August 2,
2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
Service List
Mr. Nicholas J. Harlovic
Harlovic and Perko
116
West Main Street
West.Dundee,
Illinois
60118
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite
11-500
100
W. Randolph Street
Chicago, Illinois
60601
James Day
Assistant Counsel, Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
)
1
1
1
LAZAR BROTHERS TRUCKING, INC.,
1
1
Respondent.
1
)
PCB NO. 06-183
(Enforcement
-
Water)
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 ('\Actu)
,
415 ILCS 5/31 (c)
(2) (2004)
,
moves that
the Illinois Pollution Control Board ("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 Complaint in this matter alleges violations of
Section 12 (b) of the Act, 415 ILCS 5/12 (b) (2004), Section 12 (f)
of the Act, 415 ILCS 5/12 (f) (2004), and Section 309.202 (a) of
the Board regulations, 35 Ill. Adm. Code 309.202(a)
2.
Complainant is filing this Motion and a Stipulation
and Proposal for Settlement with the Board.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
3.
The parties have reached agreement on all outstanding
issues in this matter.
4.
This agreement is presented to the Board in a
Stipulation and Proposal for Settlement filed this same date.
5.
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)
.
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
State of Illinois
BY
:
ANESSA A.
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-5361
DATE: August 2, 2006.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
PCB NO.
06-183
v.
(Enforcement
-
Water)
)
LAZAR BROTHERS TRUCKING, INC.,
.
)
)
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 LAZAR
BROTHERS TRUCKING, INC., an Illinois corporation, ("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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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 (\\Act1'),
415 ILCS 5/1
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 June 6, 2006, 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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).
3.
At all times relevant to the Complaint, Respondent was
and is an Illinois corporation duly authorized
to
transact,
business in Illinois.
B.
Site Description
1.
At all times relevant to the Complaint, Respondent
,
.
operated a trucking facility located at 91 Sola Drive, Gilberts,
Kane County, Illinois ("Site"). The Site consists of
approximately two (2) acres.
2.
On November 19, 2004, an inspection revealed a newly
constructed sanitary sewer at the Site, disturbed surfaces and
piles of excavated soils, and portions of the Site which had been
graded but not stabilized. Respondent had not constructed runoff
control structures at the Site to control the runoff from
construction activities. Respondent had not obtained a
construction permit from Illinois EPA for the sanitary sewer at
the Site.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
3.
On January 20, 2005, the Illinois EPA issued a Sanitary,
Sewer Permit for operation of the sanitary sewer and 4 manholes
at the Site.
4.
On April 12, 2005, the Illinois EPA issued a National
Pollutant Discharge Elimination System General Storm Water Permit
for Construction Activities ("NPDES Storm Water Permit") for
storm water discharges associated with the construction
activities at the Site.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has .violated the
following provisions of the Act and Board regulations:
Count I
:
Failure to obtain an NPDES storm water permit, in
violation of Section 12(f) of the Act, 415 ILCS
5/12 (f) (2004)
;
Count 11:
Failure to obtain construction permit for
sanitary sewer, in violation of Section 12(b) of
the Act, 415 ILCS 5/12 (b)
,
(2004), and 35 Ill.
Adm. Code 309.202 (a)
;
D.
Admission of Violations
The Respondent admits the violations alleged in the
Complaint filed in this matter and referenced within Section
1II.C herein.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
E.
Compliance Activities to Date
On January 20, 2005, the Illinois EPA issued a Sanitary
Sewer Permit for operation of the sanitary sewer and 4 manholes
at the Site. On April 12, 2005, the Illinois EPA issued an NPDES
Storm Water Permit for storm water discharges associated with the
construction activities at the Site. The Site has been
stabilized and erosion control has been implemented.
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.
No change in ownership, corporate status or operator of the
Site 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 Site, the Respondent shall continue to be bound
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
5.
any subsequent compliance.
In response to these factors, the parties state the
following:
1.
The alleged violations threatened human health and the
environment by denying the Illinois EPA the opportunity for
oversight during the installation of the sanitary sewer, and by
allowing conditions to be present that could have contaminated
the waters of the State.
2.
There is social and economic benefit to the Site.
3.
Operation of the facility is suitable for the area in
which it is located.
4.
It is both technically practicable and economically
reasonable to obtain necessary permits and to properly construct
runoff control structures at the Site in compliance with the Act
and Board regulations.
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
mitigation or aggravation of penalty, including but not
limited to the following factors:
1.
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;
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:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
1.
Complainant has alleged that the violations continued
from approximately May 2002 through approximately the fall of
2003, and again in March 2005.
2.
Construction of a sewer line and performance of
earthwork activities without obtaining and complying with State
permitting requirements displays lack of diligence. Respondent
demonstrated due diligence upon being notified of the violations
by Illinois EPA.
3.
The penalty obtained negates any economic benefit that
accrued as a result of Respondent's non-compliance.
4. Complainant has determined, based upon the specific
facts of this matter, that a penalty of Five Thousand Five
Hundred Dollars ($5,500.00) will serve to deter further
violations and aid in future voluntary compliance with the Act
and Board regulations.
5.
Respondent has not been a party to an enforcement
action in the past.
6.
There was no self-disclosure.
7.
The settlement of this matter does not include a
supplemental environmental project.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Five Thousand Five Hundred Dollars ($5,500.00) 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) 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:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
VANESSA VAIL
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 2oth Floor
Chicago, Illinois 60601
JAMES DAY
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
2.
Pursuant to Section 42 (9) of the Act, 415 ILCS 5/42 (9)
(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.
3.
For purposes of payment and collection, Respondent may
be reached at the following address:
LAZAR BROTHERS TRUCKING, INC.
ATTN: MR JOSEPH LAZAR
1330 Todd Farm Road
Elgin, Illinois 60123
11
i
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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 VIII.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 of the
Act and the Board Regulations promulgated thereunder for all
violations alleged in the Complaint in this matter, for purposes
of Sections 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 enforcement
action or permit proceeding, any allegations that these alleged
violations were adjudicated.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
C.
Cease and Desist
The Respondent shall cease and desist from future violations
of the Act that.were the subject matter of the Complaint as
outlined in Section 1II.C ("Allegations of Non-Compliance") of
this Stipulation.
D.
Release from Liability
In consideration of the Respondent's payment of the
$5,500.00 penalty and any specified costs and accrued interest,
its commitment to Cease and .Desist as contained in Section VII1.C
and upon the 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 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 June 2, 2006. 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;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
.
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.
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 Site 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,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
her employees and representatives may take photographs, samples,
and collect information, as they deem necessary.
F.
~nforcernent
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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
G.
~xecution
of Document
his‘ Stipulation shall become effective only when executed
by all parties and the Board. This Stipulation may be executed
by the parties in one or more counterparts, all of which taken
together, shall constitute one and the same instrument.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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 ~nforcement/
Asbestos Litigation Division
BY:
DATE
:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
DATE
:
ROBERT A. MESSINA
Chief Legal Counsel
LAZAR BROTHERS TRUCKING, INC.
BY:
Title:
Stipulation
&
propoU1-~azar
Bros.Fina1.071306
17
-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
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 FLLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW
J.
DUNN,
Chief
Environmental ~nforcement/
Asbestos Litigation Division
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
&
,
.
/
?
ROB RT A. ME S NA
Chief Legal Counsel
LAZAR BROTHERS TRUCKING, INC.
BY:
BY:
Name
:
Title:
DATE
:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006
CERTIFICATE OF SERVICE
I, VANESSA A. VAIL, an Assistant Attorney General, certify
that on the 2nd day of August 2006, I caused to be served by
First Class Mail the foregoing Stipulation and Proposal for
Settlement and Motion for Relief from Hearing Requirement to the
parties named on the attached Service List, by depositing same
in
prepaid envelopes with the United States Postal
Service located at 100 West Randolph Street, Chicago, Illinois
60601.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 2, 2006