BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
General of the State of Illinois,
)
Complainant,
1
V.
PCB No. 06-178
(Enforcement
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Water)
GALENA HILLSIDE HOMES, INC., an
)
Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the 25th day of May, 2006, I filed with the Clerk of the
Illinois Pollution Control Board a Stipulation and Proposal for Settlement and a Motion to
Request Relief From Hearing Requirement, copies of which are attached hereto and are hereby
served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY:
STEPHEN
Se
J. SYLVJSTER
9'w
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
2oth Floor
Chicago, Illinois 60601
3 12-814-2087
DATE: September 25,2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
SERVICE LIST
Mr. Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street, 1
1
th Floor
Chicago, IL 60601
Mr. Joseph
E. Nack
Nack, Richardson,
&
Nack P.C.
106 North Main Street
P.O. Box 336
Galena, IL
6 1 036
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA
MADIGAN, Attomey General
of the State of Illinois,
Complainant,
v.
GALENA HILLSIDE HOMES, INC., an
Illinois corporation,
Respondent.
)
)
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PCB No. 06-178
1
(Enforcement
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Water)
)
1
1
)
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MOTION TO REQUEST RELIEF FROM HEARING REOUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attomey 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 May 24,2006, a Complaint was filed with the Illinois Pollution Control Board
("Board") in this matter. On September 25,2006, a Stipulation and Proposal for Settlement was
filed with the Board.
2.
Section 3 l(c)(2) of the lllinois Environmental Protection Act ("Act"), 41 5 ILCS
513 1 (c)(2) (2004), effective August 1, 1996, 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.
3.
Section
3 l(c)(2) of the Act, 415 513 l(c)(2) (2004), provides as follows:
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 discretion, concludes that a
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
-
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
(I).
4.
No hearing is currently scheduled in the instant case.
5.
The Complainant requests the relief conferred by Section
3
1 (c)(2) of the Act, 41 5
ILCS
513
1 (~)(2) (2004).
r
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 4 15 ILCS
513
1 (c)(2) (2004).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY:
5-
STEPHEN J. SY~~ESTER
/+
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
2oth Floor
Chicago, Illinois 60601
3
12-8 14-2087
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA
MADIGAN, Attorney General
of the State of Illinois,
Complainant,
GALENA HILLSIDE HOMES, INC., an
Illinois corporation,
Respondent.
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PCB No. 06-1
78
(Enforcement
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Water)
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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 Galena Hillside Homes,
Inc. ("GHH), 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,
GHH agrees to be bound by the Stipulation and
Board Order and not to contest its validity in any subsequent proceeding to implement or enforce
its terms.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
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
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 May 24,2006, 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 of the Illinois EPA, pursuant to Section 3 1 of the Act, 415 ILCS 513
1(2004), against
GHH.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 415 ILCS 514 (2004).
3.
At
all times relevant to the Complaint, GHH 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, GHH excavatedlharvested topsoil fkom a
parcel of land approximately 3.6 acres in size, which it owns, located off Posey Road in the East
112 of Section 36, Township 29 North, Range 1 East, Jo Daviess County, Illinois ("Site").
2.
Stormwater run-off
fiom the Site flows directly into the East Fork of the Galena
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
River ("River"), which flows through the Site.
C.
Allegations of Non-Compliance
Complainant contends that GHH has violated the following provisions of the Act and
Board Water Pollution Regulations:
Count
I:
Water Pollution, in violation of Section 12(a) of the Act, 415 ILCS
511 2(a) (2004).
Count
11:
Creating a Water Pollution Hazard, in violation of Section 12(d) of the
Act, 415 ILCS
5/12(d) (2004).
Count 111:
Failure to obtain an NPDES Stormwater Permit, in violation of Section
12(Q of the Act, 415 ILCS 5/12(Q (2004), and 35 Ill. Adrn. Code
309.102(a).
D.
Admission of Violations
GHH admits 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 GHH, and any
officer, director, agent, or employee of
GHH, as well as any successors or assigns of GHH.
'GHH 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 GHH 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
M.
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.
The
environrnent.was threatened by GHH's failure to implement stormwater
pollution control measures at the Site, and the Illinois
EPA's information gathering
responsibilities hindered by GHH's failure to obtain a National Pollutant Discharge Elimination
System ("NPDES") permit prior to initiating soil excavatingharvesting activities at the Site.
2.
The Site has social and economic benefit.
3.
GHH's soil excavatingharvesting activities at the Site were suitable for the area
in which they occurred.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
4.
Obtaining an NPDES permit prior to engaging in soil excavatinglharvesting
activities at the Site and compliance with the permit's terms was both technically practicable and
economically reasonable.
5.
GHH has subsequently complied with the Act and Board Water Pollution
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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
In response to these factors, the parties state as follows:
1.
GHH failed to obtain an NPDES Stormwater permit prior to initiating soil
excavationharvesting activities at the Site. The violations began on or around April 22,2005.
GHH received an NPDES permit from Illinois EPA on January 5,2006.
2.
GHH was diligent in attempting to come back into compliance with the Act and
Board Water Pollution Regulations, once the Illinois EPA notified it of its noncompliance.
3.
The civil penalty obtained negates any economic benefit that Respondent may
have accrued, as a result of the delay in compliance.
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 Water Pollution Regulations.
5.
To Complainant's knowledge, GHH 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.
GHH 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. GHH
stipulates that payment has been tendered to
GHH's attorney of record in this matter in a form
acceptable to that attorney. Further, GHH stipulates that said attorney has been directed to make
the penalty payment on behalf of GHH, within thirty (30) days from the date the Board adopts
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
and accepts this Stipulation, in a manner prescribed below. The penalty described in this
Stipulation shall be paid by certified check or money order 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
The name and number of the case and
GHH's Federal Employer Identification Number O;EIN)
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:
Stephen
J. Sylvester
Assistant Attorney General
Environmental Bureau
188
W. Randolph St., 2oth Floor
Chicago, Illinois 60601
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 511003 (2004).
Interest on any unpaid payment shall begin to accrue
fiom 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,
GHH may be reached at the following
address:
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
James L. Miller
402 Fourth Street
Galena, Illinois 6 1036
4.
For purposes of payment and collection,
GHH's attorney may be reached at the
following address:
Joseph
E. Nack
Nack, Richardson,
&
Nack P.C.
106 North Main Street
P.O. Box 336
Galena,
IL 61036
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 VIII.D., below, GHH hereby agrees that this
Stipulation may be used against
GHH 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, GHH 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, SEPTEMBER 25, 2006
C.
Cease and Desist
GHH 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 1II.C. ("Allegations of Non-
Compliance") of this Stipulation.
D.
Release from Liability
In consideration of GHH's payment of the $10,000.00 penalty and any specified costs
and accrued interest, completion of all activities required hereunder, to Cease and Desist as
contained in Section
VII1.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
GHH 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 May 24,2006. The Complainant reserves, and this Stipulation is without prejudice to,
all rights of the State of Illinois against
GHH 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 GHH'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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
law or in equity, which the State of Illinois or the Illinois EPA may have against any person, as
defined by Section 3.3 15 of the Act, 41 5 ILCS 513.3 15, or entity other than GHH.
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
GHH'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.
Enforcement of Board Order
1.
Upon the
en& 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.
GHH 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 GHH 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.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
G.
Execution of Document
This Stipulation and Proposal for Settlement shall become effective only when executed
by all parties and accepted and approved by the Board. This Stipulation and Proposal for
Settlement 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, SEPTEMBER 25, 2006
WHEREFORE, Complainant and GHH 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/
Asbest
BY:
Environmental Bureau
Assistant Attorney Gene
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
I
.
BY:
h,
#i4@-
ROBERT A. MES~'INA
Chief Legal Counsel
GALENA HILLSIDE HOMES,
INC.
BY:
Name:
Title:
DATE:
7//5/b
DATE:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
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t
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4
.
WHEREFORE, Complainant and GHH 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
Enforcemend
Asbestos Litigation Division
BY:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
ROBERT A. MESSINA
Chief Legal Counsel
BY:
DATE:
8-1
5-06
Title:
DATE:
DATE:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006
b
CERTIFICATE OF SERVICE
I, STEPHEN
J. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this 25th day of May, 2006, the foregoing Stipulation and Proposal for
Settlement, Motion to Request Relief From Hearing Requirement and Notice of Filing upon the
persons listed on the Service List by depositing same in an envelope, first class postage prepaid,
with the United States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before
the hour of
5:00
p.m.
5
STEPHEN J. SY~VESTE~
4-
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 25, 2006