Lisa Madigan
NI"I'ORNEY GENERAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R . Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
JLH/pp
Enclosures
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
October 6, 2006
Re :
People v. Moore Painting Co . and Illinois-American Water Co
.
PCB No . 06-104
Dear Clerk Gunn :
Enclosed for filing please find the original and ten copies of a Notice of Filing, Motion for
Relief from Hearing Requirement, Partial Stipulation and Proposal for Settlement with Moore
Painting Co
., and Partial Stipulation and Proposal for Settlement with Illinois-American Water
Company 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.
ou
Ho an
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
RECEIVED
CLERK'S
OFFICE
OCT
1
1 2006
STATE OF ILLINOIS
Pollution Control Board
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) 8143806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 •
TTY: (618) 529-6403 • Fax : (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
CLERK'S
E IVIED
Complainant,
)
OCT 1 1 2006
STATE OF ILLINOIS
V.
)
PCB No. 06-104
Pollution Control Board
(Enforcement)
MOORE PAINTING CO ., and ILLINOIS- )
AMERICAN WATER COMPANY,
)
Respondents .
)
NOTICE OF FILING
To:
Ms. Amy Sholar
Ms . Tracy Elzemeyer
Sholar Law Office
Legal Division
510 E . 6" Street
Illinois-American Water Company
Alton, IL 62002
727 Craig Road
St
. Louis, MO 63141
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,
PARTIAL STIPULATION AND PROPOSAL FOR SETTLEMENT WITH MOORE PAINTING CO
.
and PARTIAL STIPULATION AND PROPOSAL FOR SETTLEMENT WITH ILLINOIS-AMERICAN
WATER COMPANY, copies of which are 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 : October 6, 2006
MATTHEW J
. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation ivisio
l,
BY
,L
.
OMAN
~ . Assistant Attorney General
Environmental Bureau
CERTIFICATE OF SERVICE
I hereby certify that I did on October 6, 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, PARTIAL STIPULATION AND PROPOSAL FOR SETTLEMENT
WITH MOORE PAINTING CO . and PARTIAL STIPULATION AND PROPOSAL FOR
SETTLEMENT WITH ILLINOIS-AMERICAN WATER COMPANY
To:
Ms. Amy Sholar
Ms
. Tracy Elzemeyer
Sholar Law Office
Legal Division
510 E . 6" Street
Illinois-American Water Company
Alton, IL 62002
727 Craig Road
St
. Louis, MO 63141
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
J.'L
. H
AN
-Assistant Attorney General
This filing is submitted on recycled paper .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
vs .
)
PCB No. 06-104
(Enforcement)
MOORE PAINTING CO ., and ILLINOIS- )
AMERICAN WATER COMPANY,
)
Respondents .
)
RECEIVEDCLERK'S
OFFICE
OCT 1
1 2006
Pollution
STATE OFControl
ILLINOISBoard
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 5131(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 two Stipulations and Proposals for
Settlement, filed contemporaneously with this motion
.
3 .
All parties agree that a hearing on the Stipulations and Proposals 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
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : October 6, 2006
2
MATTHEW J . DUNN, Chief
Environni
I Enforcement/Asbestos
L'
io
MAN
ironmental Bureau
As istant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
RECEIVEDCLERK'S
OFFICE
Complainant,
)
OCT 1 1 2006
Pollution
STATE OFControl
ILLINOISBoard
PCB 2006-104
V .
)
(Enforcement -
MOORE PAINTING CO
., and ILLINOIS- )
AMERICAN WATER COMPANY,
)
Respondent .
PARTIAL STIPULATION AND PROPOSAL FOR SETTLEMENT
WITH MOORE PAINTING CO
.
TABLE OF CONTENTS
I . JURISDICTION
2
II
. AUTHORIZATION
2
III . STATEMENT OF FACTS
3
A . Parties
3
B . Site Description
3
C . Allegations of Non-Compliance
3
D . Admission of Violations
4
E . Compliance Activities to Date
5
F .
Value of Settlement and Resulting Benefits 5
IV . APPLICABILITY
5
V .
COMPLIANCE WITH OTHER LAWS AND REGULATIONS 7
VI .
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED
NON-COMPLIANCE
8
VII .
CONSIDERATION OF SECTION 42(h) FACTORS
9
VIII . TERMS OF SETTLEMENT
12
A . Penalty Payment
13
B . Future Use
15
C . Cease and Desist
16
D .
Release from Liability
16
E .
Right of Entry
17
F . Modification of Stipulation
18
G .
Enforcement of Board Order
19
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
Respondent .
PARTIAL 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 MOORE
PAINTING CO .,("Respondent"), have agreed to the making of this
Partial 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
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V .
MOORE PAINTING CO
., and ILLINOIS-
AMERICAN WATER COMPANY,
CLERK'S
OFFICE
OCT 1 1 2006
Pollution
STATE OF
Control
ILLINOIS
Board
PCB 2006-104
(Enforcement -
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
1 .
On December 20, 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,
ILCS 5/4 (2004) .
3
. At all times relevant to the Complaint, Respondent has
been a contractor hired by Illinois-American to remove paint and
then repaint a vertical water storage tank . Respondent Moore is
an Illinois company in good standing
.
B .
Site Description
1 .
At all times relevant to the Complaint, Respondent was
a contractor hired to remove paint and then repaint a vertical
water storage tank located at 1013 Cardinal Street ("Cardinal St .
Tank" or "site") in a residential area of the City of Alton,
Madison County, Illinois .
2 .
The Respondents Moore and Illinois American entered
into a "Tank Maintenance Agreement" ("TMA")in March 2004 to
govern all aspects of the Cardinal St
. Tank project . The TMA
stated that Moore must not employ open abrasive blasting or
uncontained hydro blasting, that Moore provide for total
containment unless alternative methods were approved by Illinois
American
; and that Moore must collect and ensure that all waste
415
is transported in covered vehicles to a landfill or facility
approved by the appropriate state regulatory authority .
3 .
On a date better known to the Respondents, Moore
submitted to Illinois-American an amendment to the tank
maintenance agreement proposing to use an "alternate robotic
blast procedure" in conjunction with a "slurry blast" on areas
not reached by the robotic blasting
. This amendment also
included the application of Pretox to the tank
. Respondent Moore
represents that Illinois-American approved the amendment and
thereby allowed Moore to proceed without the necessary total
containment .
4 .
On June 3, 2004, Moore employed uncontained hydro
blasting on the lead-based paint on the Cardinal St
. Tank .
5 .
On June 4, 2004, there was an accumulation of the
resulting lead-based paint wastes, including the blasting grit or
media, on tarps on the ground along the base of the Cardinal St
.
Tank, on the ground of the vacant lot to the east and the
backyard of the residence to the south, and in the street to the
north .
6 .
On June 4, 2004, the Illinois EPA collected a sample of
water being discharged from the site and three samples of wastes
on the ground of the vacant lot to the east and the backyard of
the residence to the south
. Lead was subsequently determined to
be present in all four samples, one of which tested to be 1,980
parts per million (ppm), which is over the Illinois EPA's clean-
up objective of 400 ppm for lead
.
7 .
On June 7, 2004 and June 11, 2004, the Illinois EPA
conducted meetings at the site with representatives of Illinois
American and Moore, to discuss the situation .
8 .
On June 29, 2004, the Illinois EPA conducted a follow-
up inspection of the site and observed a significant amount of
paint chips and grit in the vacant lot to the east of the tank,
and on residences south of the tank .
9 .
As of today's date, the Respondents represent that they
have removed the paint chips and grit previously observed at the
site, and have remediated the conditions at the site as required
by the Act . On April 27, 2005, a Remedial Action Completion
Report was submitted to the Illinois EPA . The Illinois EPA has
accepted this report as final and has required no further
remedial action
.
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations :
Count I :
Air Pollution,
in violation of Section 9(a) of
the Act, 415 ILCS 5/9(a) (2004), and 35 111
. Adm .
Code 201 .141 .
Count II :
Water Pollution, in violation of Section 12(d) of
the Act, 415 ILCS 5/12(d) (2004) .
Count III : Waste Disposal Violations, in violation of
Section 21 of the Act, 415 ILCS 5/21 (a),(e)
(2004), and 35 Ill . Adm . Code 722 .111 and
808
.121(a) .
Open Dumping, in violation of Section 21(p)(1) of
the Act, 415 ILCS 5/21(p)(1) (2004) .
Hazardous Waste Determination Violations, in
violation of 35 Ill . Adm . Code 722 .111 .
Special Waste Determination Violations, in
violation of 35 Ill . Adm
. Code 808 .121 .
D .
Admission of Violations
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
.A herein, and this Stipulation shall not be
interpreted as including such admission
.
E .
Compliance Activities to Date
As
of today's date, the Respondents represent that they have
remediated the site as required by the Agency and the Act
.
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 .
2 .
In the event that the Respondent proposes to sell or
transfer any real property or operations subject to any Order
accepting and adopting the terms of this Stipulation and Proposal
for Settlement, the Respondent shall notify the Complainant 30
days prior to the conveyance of title, ownership or other
interest, including a leasehold interest in the facility or a
portion thereof
. The Respondent shall make the prospective
purchaser or successor's compliance with any order accepting and
adopting the terms of this Stipulation a condition of any such
sale or transfer and shall provide a copy of this Stipulation and
any order accepting and adopting the terms of this Stipulation to
any such successor in interest . This provision does not relieve
the Respondent from compliance with any regulatory requirement
regarding notice and transfer of applicable facility permits .
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 :
(c) 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 :
(i) the
character and degree of injury to, or
interference with the protection of the
health, general welfare and physical property
of the people ;
(ii) the social and economic value of the
pollution source
;
(iii)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 ;
(iv) the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting
from such pollution source
; and
(v) any subsequent compliance .
In response to these factors, the parties state the
following :
1 .
Human health and the environment were threatened and
the Illinois EPA's information gathering responsibilities
hindered by the Respondent's violations
. The Defendant's actions
posed a significant threat to the health, general welfare and
physical property of the people .
2 .
There is social and economic benefit to the facility
.
3 .
Operation of the facility was suitable for the area in
which it occurred .
4 .
Compliance with the Act and accompanying regulations
was both technically practicable and economically reasonable
.
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)(2002), provides
as follows :
(h) In determining the appropriate civil penalty to be
imposed under subdivisions (a), (b) (1), (b) (2), (b)(3),
or (b) (5) of 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 the 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 adequately contain lead paint
chips and grit during the blasting of the tower .
2 .
Respondent did attempt to come back into compliance
with the Act, Board regulations and applicable federal
regulations, once the Illinois EPA notified it of its
noncompliance, although it was not immediately successful in
achieving compliance
.
3 .
Noncompliance was of economic benefit to the
Respondent
. Adequate containment measures for the blasting,
while available, are expensive .
4 .
Complainant has determined, based upon the specific
facts of this matter, that a penalty of sixteen thousand eight
hundred dollars ($16,800 .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 .
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 Respondent shall pay a civil penalty in the sum of
sixteen thousand eight hundred dollars ($16,800 .00), upon entry
of the Stipulation . The Respondent stipulates that the current
payment is 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 as directed, 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 :
P . Poitevint
Attorney General's Office
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
Michael Roubitchek
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 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
:
Amy Sholar
Attorney
for Moore Painting
.2010 State Street
Alton, IL 62002
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 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 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
$16,800
.00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder, to Cease and
Desist as contained in Section VIII
.E 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 December 20, 2005 . The Complainant reserves, and this
Stipulation is without prejudice to, all rights of the State of
Illinois against the Respondent with respect to all other
matters, including but not limited to, the following
:
a .
criminal liability ;
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 ILLS 5/3
.315(2004), 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
.H .
Any such request shall be made by separate document, and shall
not be submitted within any other report or submittal required by
this Stipulation
. Any such agreed modification shall be in
writing, signed by authorized representatives of each party, and
then accompany 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 .
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 :
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY :
/oAAC /J6
BY :
V4 DATE
: ~0
U(r,
Robert A . Mess na
Chief Legal Counsel
Moore Painting Company
.IA A.L_.
Name : Amy Sholar
Title :
DATE :
G' I
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Moore Painting Company
BY :
Name : Dennis Moore
Title :
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DATE :
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEIVED
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK'S OFFICE
>
OCT 1 1 2006
Complainant,
)
Pollution
STATEOFControl
ILLINOISBoard
v .
PCB 2006-104
)
(Enforcement -
)
MOORE PAINTING CO ., and ILLINOIS- )
AMERICAN WATER COMPANY,
)
Respondent .
PARTIAL STIPULATION AND PROPOSAL FOR SETTLEMENT
WITH ILLINOIS-AMERICAN WATER COMPANY
TABLE OF CONTENTS
I . JURISDICTION
2
II . AUTHORIZATION
2
III . STATEMENT OF FACTS
3
A . Parties
3
B . Site Description
3
C . Allegations of Non-Compliance
3
D . Admission of Violations
4
E .
Compliance Activities to Date
5
F . Value of Settlement and Resulting Benefits 5
IV . APPLICABILITY
5
V . COMPLIANCE WITH OTHER LAWS AND REGULATIONS 7
VI . IMPACT ON THE PUBLIC RESULTING FROM ALLEGED
NON-COMPLIANCE
8
VII . CONSIDERATION OF SECTION 42(h) FACTORS
9
VIII .
TERMS OF SETTLEMENT
12
A . Penalty Payment
13
B
. Future Use
15
C . Cease and Desist
16
D . Release from Liability
1 .16
E .
Right of Entry
17
F . Modification of Stipulation
18
G . Enforcement of Board order
18
H . No Third Party Rights or Reliance 18
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
RECEIVED
)
CLERK'S
OFFICE
OCT 1
1 2006
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
PCB 2006-104
v .
)
(Enforcement - )
MOORE PAINTING CO ., and ILLINOIS- )
AMERICAN WATER COMPANY,
)
Respondent .
PARTIAL 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 ILLINOIS-
AMERICAN WATER COMPANY("Respondent" or "Illinois-American"), have
agreed to this Partial 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
1 .
On December 20, 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
ILCS 5/4 (2004) .
3 .
At all times relevant to the Complaint, Respondent was
and is a public utility providing potable water and sanitary
sewer services to various communities in Illinois
.
B .
Site Description
1 .
At all times relevant to the Complaint, Respondent
owned and operated a vertical water storage tank located at 1013
Cardinal Street ("Cardinal St . Tank" or "site") in a residential
area of the City of Alton, Madison County, Illinois .
2 .
The Respondent entered into a "Tank Maintenance
Agreement" ("TMA")in March 2004 with Moore Painting Company
("Moore")to govern all aspects of the Cardinal St
. Tank project .
The TMA stated, among other things, that Moore must not employ
open abrasive blasting or uncontained hydro blasting, that Moore
provide for total containment unless alternative methods were
approved by Illinois-American
; and that Moore must collect and
ensure that all waste is transported in covered vehicles to a
to Section 4 of the Act, 415
landfill or facility approved by the appropriate state regulatory
authority .
3 .
On a date better known to Respondent and Moore, Moore
submitted to Illinois-American an amendment to the tank
maintenance agreement proposing to use an "alternate robotic
blast procedure" in conjunction with a "slurry blast" on areas
not reached by the robotic blasting
. This amendment also
included the application of Pretox to the tank . Complainant
alleges that Illinois-American either approved or failed to
reject the amendment and thereby allowed Moore to proceed without
the necessary total containment
.
4 .
On or about the first week of June, 2004, Moore
employed uncontained hydro blasting on the lead-based paint on
the Cardinal St . Tank .
5 .
On June 4, 2004, an Illinois EPA inspection report
detailed the accumulation of the lead-based paint wastes,
including blasting grit or media, on tarps on the ground along
the base of the Cardinal St . Tank, on the ground of the vacant
lot to the east and the backyard of the residence to the south,
and in the street to the north .
6 .
On June 4, 2004, the Illinois EPA collected one water
sample and three waste/soil samples from the neighboring
properties
. While lead was subsequently determined to be present
in all four samples, the results showed that the samples were
non-hazardous except for one waste/soil sample which had a lead
level of 1,980 parts per million (ppm) total lead, which is over
the Illinois EPA's clean-up objective of 400 ppm for total lead .
7 .
On June 7, 2004 and June 11, 2004, the Illinois EPA
conducted meetings at the site with representatives of Illinois-
American and Moore, to discuss the situation .
8 .
On June 29, 2004, the Illinois EPA conducted a followup
investigation of the site and alleges that it observed the same
waste material observed on the previous inspection .
9 .
The Respondents developed a remediation action plan .
As of today's date, Respondent represents that it has removed the
paint chips and grit previously observed at the site, and has
remediated the conditions at the site as required by the Act . On
April 27, 2005, a Remedial Action Completion Report was submitted
to the Illinois EPA by Respondent . The Illinois EPA has accepted
this report as final and has required no further remedial action
.
C .
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations :
Count I :
Air Pollution, in violation of Section 9(a) of
the Act, 415 ILCS 5/9(a) (2004), and 35 Ill . Adm .
Code 201 .141 .
Count II :
Water Pollution, in violation of Section 12(d) of
the Act, 415 ILCS 5/12(d) (2004)
.
Count III : Waste Disposal Violations, in violation of
Section 21 of the Act, 415 ILCS 5/21(a),(e)
(2004), and 35 Ill . Adm . Code 722 .111 and
808 .121(a) .
Count IV :
Open Dumping, in violation of Section 21(p)(1) of
the Act, 415 ILCS 5/21(p)(1) (2004) .
Count V :
Hazardous Waste Determination Violations, in
violation of 35 Ill . Adm . Code 722 .111 .
Count VI :
Special Waste Determination Violations, in
violation of 35 111 . Adm . Code 808
.121 .
D .
Non-Admission of Violations
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 herein, and this Stipulation shall not be
interpreted as including such admission .
E .
Compliance Activities to Date
As of today's date, the Respondent represents that it has
remediated the site as required by the Agency and the Act .
Respondent submitted a Remedial Action Completion Report to
Illinois EPA, and Illinois EPA has accepted the report as final
and has required no further remedial action .
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
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 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 :
(c) 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 :
(i) the character and degree of injury to, or
interference with the protection of the
health, general welfare and physical property
of the people
;
(ii) the social and economic value of the
pollution source ;
(iii)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 ;
(iv) the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting
from such pollution source ; and
(v) any subsequent compliance .
In response to these factors, the Illinois Environmental
Protection Agency alleges the following :
1 .
Human health and the environment were threatened by the
Respondent's violations . The Defendant's actions posed a threat
to the health, general welfare and physical property of the
people .
2 .
Respondent's facility provides a social and economic
benefit to the community by being an integral part of the water
supply system in the area .
3 .
Operation of the facility was suitable for the area in
which it occurred .
4 .
Compliance with the Act and accompanying regulations
was both technically practicable and economically reasonable .
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 ILLS 5/42(h)(2002), provides
as follows
;
(h) In determining the appropriate civil penalty to be
imposed under subdivisions (a), (b)
(1), (b) (2), (b)(3),
or (b) (5) of 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 the 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 Illinois Environmental
Protection Agency alleges as follows :
1 .
The Respondent failed to adequately contain lead paint
chips and grit during the blasting of the tower, or to ensure
that the contractor selected to conduct the work would adequately
perform the work .
2 .
Respondent did attempt to come back into compliance
with the Act, Board regulations and applicable federal
regulations, once the Illinois EPA notified it of its
noncompliance, although it was not immediately successful in
achieving compliance .
Noncompliance was of economic benefit to the
Respondent
. Adequate containment measures for the blasting,
while available, are expensive . However, any economic benefit
has been offset by completion of the remedial action plan
approved by the Illinois EPA .
4
Complainant has determined, based upon the specific
facts of this matter, that a penalty of nine thousand two hundred
dollars ($9,200
.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 one
unrelated previously adjudicated violation 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 .TERMSOFSETTLEMENT
A .
Penalty Payment
1 .
The Respondent shall pay a civil penalty in the sum of
Dollars ($9,200 .00) within thirty (30) days from the date the
Board adopts and accepts this Stipulation . The Respondent
stipulates that payment will be 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 :
P . Poitevint
Attorney General's Office
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
Michael Roubitchek
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 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 :
Ms . Tracy Elzemeyer
Legal Division
Illinois-American Water Company
727 Craig Road
St . Louis, MO 63141
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 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 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
$9,200 .00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder, to Cease and
Desist as contained in Section VIII .E 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 December 20, 2005 . The Complainant reserves, and this
Stipulation is without prejudice to, all rights of the State of
Illinois against the Respondent with respect to all other
matters, including but not limited to, the following :
a .
criminal liability ;
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
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
may have against any person, as defined by Section 3 .315 of the
Act, 415 ILCS 5/3 .315(2004), or entity other than the Respondent .
E . Right of Entry
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 .H .
Any such request shall be made by separate document, and shall
not be submitted within any other report or submittal required by
this Stipulation . Any such agreed modification shall be in
writing, signed by authorized representatives of each party, and
then accompany 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 .
H
. No Third Party Rights or Reliance
Nothing in this Stipulation shall be construed to create any
rights, or grant any cause of action, to or be relied upon in any
way by any person not a party to this Stipulation .
BY :
Robert A . Mes ina
Chief Legal Counsel
Illinois-American Water
DATE : 1I3 0 IUw
BY : C~„9t~ c
DATE :
I I
I
Name : Tracy Elzemeyer
Title : rc e~
tc.k
ca't'~
WHEREFORE, Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and
Settlement as written .
Proposal for
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY :
Thomas
Environmental
Davis,
BureauChief
DATE : /0/J6"/0C
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
