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Lisa Madigan

1"1 ORNEN UENER,11.

OFFICE OF THE ATTORNEY GENERAL

STATE OF 11,1,1NOIS

January 7, 2008

RECEIVED

CLERK'S OFFICE

JAN 0 9 2008

STATE

ILLINOIS

Pollution Control Board

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 West Randolph

Chicago, Illinois 60601

Re:?

People v. Fulford Construction, Inc.

PCB No. 06-85'

etp

Dear Clerk Gunn:

Enclosed for filing please find the original and ten copies of a Notice of Filing, Motion for

Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard to the

above-captioned matter. Please file the originals and return file-stamped copies to me in the

enclosed, self-addressed envelope.

Thank you for your cooperation and consideration.

Very truly yours,

.500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • 'ITV (217) 785-2771 • Fax:

(217) 782-7046

J. L: Homan

Environmental Bureau

500 South Second Street

Springfield, Illinois 62706

(217) 782-9031

JLH/pjk

Enclosures

100 West Randolph Street. Chicago, Illinois 60601?•

(312)

814-30011 •?Tn.: (312) 814-3374 •?

Fax: (312) 814-3806

1001

East Main,

Carbondale, Illinois 62901 • (6181529-6400 • .1

- 1'11 (618) 529-6403 • Eax: (618) 529-6416?tie

RECEIVED

CLERK'S OFFICE

JAN 0 9 2008

STATE

Pollution

Control

ILLJNOIS

Board

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF

ILLINOIS,

)

Complainant,?

)

vs.

PCB No.0(/ .56

(Enforcement)

FULFORD CONSTRUCTION, INC.,

an Illinois corporation,

Respondent.

NOTICE OF FILING

To:?

Norbert Glassl, Esq.

Kasten, Green, Glassl & Welch, L.L.P.

784 Wall Street, Suite 100

O'Fallon, IL 62669

PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution

Control Board of the State of Illinois, a MOTION FOR RELIEF FROM HEARING REQUIREMENT

and STIPULATION AND PROPOSAL FOR SETTLEMENT, 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

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Divisi, n

tile

L. OMAN

Assistant Attorney General

Environmental Bureau

500 South Second Street

Dated: January 7, 2008

BY:

CERTIFICATE OF SERVICE

I hereby certify that I did on January 7, 2008, send by First Class Mail, with postage

thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy

of the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM

HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR

SETTLEMElftECEIVEDLERK'S

OFFICE

784 Wall Street, Suite 100

O'Fallon, IL 62669

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

STATE OF ILLINOIS

Pollution Control Board

. L. HOMAN

Assistant Attorney General

This filing is submitted on recycled paper.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PCB No. 06-61

RECEIVED

Pollution Control Board

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

FULFORD CONSTRUCTION, INC.,

an Illinois corporation,

Respondent.

MOTION FOR RELIEF FROM HEARING REQUIREMENT

NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31(c)(2) of the

Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31(c)(2) (2006), 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 5131(c)(1) (2006). In support of

this motion, Complainant states as follows:

The parties have reached agreement on all outstanding issues in this matter.

This agreement is presented to the Board in a Stipulation and Proposal for

Settlement, filed contemporaneously with this motion.

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 5131(c)(2) (2006).

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

itigatin Division

MAN

, Environmental Bureau

Assistant Attorney General

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) (2006).

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

ATTORNEY GENERAL

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: January 7, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. LISA MADIGAN, Attorney

General of the State of Illinois,

Complainant,

VS.

FULFORD CONSTRUCTION INC., an

Illinois corporation,

Respondent

RECEIVED

CLERK'S OFFICE

JAN 0 9 2008

cip

STATE OF ILLINOIS

Pollution

Control Board

PCB 06-pe

(Enforcement - Water)

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

FULFORD CONSTRUCTION INC. ("Respondent"), have agreed to the making of this

Stipulation and Proposal for Settlement ("Stipulation") and submit it to the Illinois Pollution

Control Board ("Board") for approval. The parties agree that the statement of facts contained

herein represents a fair summary of the evidence and testimony which would be introduced by

the parties if a hearing were held. The parties further stipulate that this statement of facts is

made and agreed upon for purposes of settlement only and that neither the fact that a party has

entered into this Stipulation, nor any of the facts stipulated herein, shall be introduced into

evidence in any other proceeding regarding the claims asserted in the Complaint except as

otherwise provided herein. If the Board approves and enters this Stipulation, Respondent

agrees to be bound by the Stipulation and Board Order and not to contest their validity in any

subsequent proceeding to implement or enforce their terms.

I. JURISDICTION

The Board has jurisdiction of the subject matter herein and of the parties consenting

hereto pursuant to the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1 et seq. (2004).

II.

AUTHORIZATION

The undersigned representatives for each party certify that they are fully authorized by

the party whom they represent to enter into the terms and conditions of this Stipulation and to

legally bind them to it.

III. STATEMENT OF FACTS

A. Parties

On November 21, 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 Respondent.

The Illinois EPA is an administrative agency of the State of Illinois, created

pursuant to Section 4 of the Act, 415 ILCS 5/4 (2004).

At all times relevant to the Complaint, Respondent was an Illinois corporation in

good standing that is authorized to transact business in the State of Illinois. Respondent's

president and registered agent is Mark T. Fulford, who may be reached at 775 Sunset

Boulevard, Suite A, O'Fallon, St. Clair County, Illinois, 62269, or 1242 Rutherford Ridge,

O'Fallon, Illinois 62269.

B. Site Description

At all times relevant to the Complaint, Respondent was the developer of the

Woodfield Estates Subdivision, a residential subdivision which consists of fifty-one single-family

lots. Woodfield Estates Subdivision is located in the Village of Shiloh, St. Clair County, Illinois

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("facility" or "site").

On June 10, 1999, the Illinois EPA inspected the site and observed that the

homes on site used single family aeration units as a method of handling home wastewater. The

inspectors observed that fifteen (15) of these home aeration units discharged through

connections to street catchbasins of the storm sewer system. The discharge was noted to have

a distinct hydrogen sulfide scent.

Upon subsequent record review, the Illinois EPA determined that a NPDES

permit was not obtained prior to initiating discharge from aeration units into the storm water

system, and that a construction permit was not obtained prior to connecting the individual family

aeration units to the storm sewer system.

As of the date of filing this Stipulation, the fifteen (15) home aeration units have

been disconnected from the catchbasins of the storm sewer system on site. A new sewer line

has been installed.

Allegations of Non-Compliance

Complainant contends that Respondent has violated the following provisions of the Act

and Board regulations:

Count I:

NPDES Permit Violations of Section

12(f), 415 ILCS 5/12(f) (2004), and 35

III. Adm. Code 309.102(a).

Count II:

Construction Permit Violations of

Section 12(b), 415 ILCS 5/12(b) (2004),

and 35 III. Adm. Code 309.202(a).

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.

-3-

By entering into this Stipulation and complying with its terms, Respondent does not affirmatively

admit the allegations of violation within the Complaint and referenced within Section III.0

herein, and this Stipulation shall not be interpreted as including such admission.

IV.

APPLICABILITY

This Stipulation shall apply to and be binding upon Complainant and Respondent, and

any officer, director, agent, or employee of Respondent, as well as any successors or assigns

of Respondent. Respondent shall not raise as a defense to any enforcement action taken

pursuant to this Stipulation the failure of any of its officer, directors, agents, or employees 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 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 III. 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:

the character and degree of injury to, or interference with the protection

of the health, general welfare and physical property of the people;

the social and economic value of the pollution source;

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;

the technical practicability and economic reasonableness of reducing or

eliminating the emissions, discharges or deposits resulting from such

pollution source; and

any subsequent compliance.

-4-

In response to these factors, the parties state as follows:

Human health and the environment were threatened and the Illinois EPA's

information gathering responsibilities hindered by Respondent's violations.

There is social and economic benefit to the subdivision.

Operation of a correctly designed, permitted home wastewater disposal system

was and is suitable for the area in which it occurred.

Obtaining a permit prior to construction at the site and compliance with its terms

is both technically practicable and economically reasonable.

Respondent has now complied with the Act and the Board Regulations in relation

to the issues raised in the Complaint.

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:

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;

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;

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;

the number, proximity in time, and gravity of previously adjudicated

violations of this Act by the respondent;

whether the respondent voluntarily self-disclosed, in accordance with

subsection I of this Section, the non-compliance to the Agency; and

whether the respondent has agreed to undertake a "supplemental

environmental project," which means an environmentally beneficial

-5-

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:

Respondent failed to obtain a permit for construction site activities prior to

beginning construction activities at the site. The violations recognized in the Complaint began

on or around June 10, 1999, and have now been resolved.

Respondent was initially not diligent in attempting to come back into compliance

with the Act, Board regulations, and applicable regulations; however, once the Illinois EPA and

the Attorney General's Office notified it of its non-compliance, it began to take substantial action

towards compliance.

There was no economic benefit in this matter.

Complainant has determined, based upon the specific facts of this matter, that a

penalty of two thousand dollars ($2,000.00) will serve to deter further violations and aid in

future voluntary compliance with the Act and Board regulations.

To Complainant's knowledge, Respondent has no previously adjudicated

violations of the Act.

Self-disclosure is not at issue in this matter.

The settlement of this matter does not include a supplemental environmental

project.

VIII.

TERMS OF SETTLEMENT

A. Penalty Payment

Respondent shall pay a civil penalty in the sum of two thousand dollars

($2,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.

-6-

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 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

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 or money order and any

transmittal letter shall be sent to:

Peggy Kingen

Assistant Attorney General

Environmental Bureau

500 South Second Street

Springfield, Illinois 62702

Joey Logan-Wilkey

Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

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

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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 or money order, payable to the Illinois

EPA, designated to the Illinois Environmental Protection Trust Fund and delivered to the

address and in the manner described above.

For purposes of payment and collection, Respondent may be reached at the

following address:

Norbert Glass!, Esq.

Kasten, Green, Glass! & Welch, L.L.P.

784 Wall Street, Suite 100

O'Fallon, IL 62669

Fulford Construction, Inc.

775 Sunset Boulevard, Suite A,

O'Fallon, Illinois, 62269

In the event of default of this Section VIII.A, 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, Respondent hereby agrees that this

Stipulation may be used against 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), and

-8-

by Respondent in any action seeking reimbursement, or other damages, from third parties for

the remediation costs incurred by Respondent and for the penalty imposed against, as well as

the costs and attorneys' fees incurred by, Respondent in the action and in complying with

Complainant's requirements. 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.

Cease and Desist

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.0

("Allegations of Non-Compliance") of this Stipulation.

D. Release from Liability

In consideration of Respondent's payment of the two thousand dollars ($2,000.00)

penalty and any specified costs and accrued interest, completion of all activities required

hereunder, commitment to Cease and Desist as contained in Section VIII.0 and upon the

Pollution Control Board's acceptance and approval of the terms of this Stipulation and Proposal

for Settlement, Complainant releases, waives and discharges 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 November 21, 2005.

Complainant reserves, and this Stipulation is without prejudice to, all rights of the State of

Illinois against 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

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regulations;

liability for natural resources damage arising out of the alleged violations; and

liability or claims based on 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 Respondent.

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 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.

Correspondence,

Reports and Other Documents

Any and all correspondence, reports and any other documents required under this

Stipulation, except for payments pursuant to Sections VIII.A ("Penalty Payment") of this

Stipulation shall be submitted as follows:

As to Complainant

Peggy Kingen

Illinois Attorney General's Office

Environmental Bureau

500 South Second Street

Springfield, Illinois 62702

Joey Logan-Wilkey

Assistant Counsel

-10-

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Illinois EPA

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

As to Respondent

Norbert Glassl, Esq.

Kasten, Green, Glass! & Welch, L.L.P.

784 Wall Street, Suite 100

O'Fallon, IL 62669

Fulford Construction, Inc.

775 Sunset Boulevard, Suite A,

O'Fallon, Illinois, 62269

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.F. 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.

Enforcement of

Board Order

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.

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.

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.

It is the intent of 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

LISA MADIGANOF

THE STATE OF ILLINOIS,

MATTHEW J. DUNN, Chief

Environmental Enforcement/

Asbestos Litigation Division

THOMAS DAVIS, Chief

Environmental Bureau

Assistant Attorney General

ILLINOIS ENVIRONMENTAL

FULFORD CONSTRUCTION, INC.

Ao.