BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CITY OF HOMETOWN, a municipal
corporation,
Respondent.
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PCB No. 08-027
) (Enforcement - Water)
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NOTICE OF FILING
To: See Attached Service List.
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the Illinois Pollution Control Board by
electronic filing the following Stipulation and Proposal for
Settlement and Motion for Relief from Hearing Requirement,
copies of which are attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
B .
,-~~nnifer
~.
Tomas
Assistant Attorney General
Environmental Bureau
69 W. Washington Street, Ste. 1800
Chicago, Illinois 60602
(312) 814-0609
DATE: March 5, 2008
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, March 5, 2008
SERVICE LIST
Joseph Cainkar
Louis F. Cainkar, Ltd.
30 North LaSalle Street, Suite 3922
Chicago, Illinois 60602-2507
Charles Gunnarson
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
Electronic Filing - Received, Clerk's Office, March 5, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CITY OF HOMETOWN, a municipal
corporation,
Respondent.
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)
)
)
)
PCB No. 08-027
) (Enforcement - Water)
)
)
)
)
)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois, and
pursuant to Section 31(c) (2) of the Illinois Environmental
Protection Act ("Act"), 415 ILCS 5/31 (c) (2) (2006), moves that
the Illinois Pollution Control Board ("Board") grant the parties
in the above-captioned matter relief from the hearing
requirement imposed by Section 31 (c)
(1)
of the Act, 415 ILCS
5/31 (c) (1) (2006).
In support of this motion, Complainant
states as follows:
1.
The Complaint in this matter alleges violations of
Section 1 of the Public Water Act, 415 ILCS 45/1 (2006), Section
18 (a) (2) of the Act, 415 ILCS 5/18 (a) (2) (2006), and Sections
603.102, 603.103(a), and 603.105(b) of the Board Publid'Water
Supply Regulations, 35 Ill. Adm. Code 603.102, 603.103(a), and
603.105 (b) .
Electronic Filing - Received, Clerk's Office, March 5, 2008
2.
The parties have reached agreement on all outstanding
issues in this matter.
3.
This agreement is presented to the Board in a
Stipulation and Proposal for Settlement filed this same date.
4.
All parties agree that a hearing on the Stipulation
and Proposal for Settlement is not
necessary~
and respectfully
request relief from such a hearing as allowed by Section
31 (c) (2) of the Act, 415 ILCS 5/31 (c) (2) (2006).
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
State of Illinois
BY:
~TOMAS
"'II~'"
:CJIocA...
Io'mtts
.
Assistant Attorney General
Environmental Bureau
69 W. Washington Street, Ste. 1800
Chicago, Illinois 60602
(312) 814-0609
DATE: March 5, 2008
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CITY OF HOMETOWN, a
municipal corporation,
Respondent.
PCB No. 08-027
(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
the City of Hometown (herein "Respondent" or "Hometown"), 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
Complainant, Illinois EPA and Respondent ("parties to this
Stipulation") 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 to this Stipulation 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 to this
Stipulation has entered into this Stipulation, nor any of the
facts stipulated herein, shall be introduced into evidence in
Electronic Filing - Received, Clerk's Office, March 5, 2008
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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 its
validity in any subsequent proceeding to implement or enforce
its terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and
of the parties to this Stipulation consenting hereto pursuant to
the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1
et
seq.
(2006).
II.
AUTHORIZATION
The undersigned representatives for Complainant, the
Illinois EPA, and Respondent certify that they are fully
authorized by the party whom they represent to enter into the
terms and conditions of this Stipulation and to be legally bound
by it.
III. STATEMENT OF FACTS
A.
Parties to this Stipulation
1.
On October 1,
2007
a Complaint was filed on behalf of
the People of the State of Illinois by Lisa Madigan, Attorney
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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General of the State of
Illinois~
on her own motion and upon the
request of the Illinois Environmental Protection Agency
("Illinois EPA") pursuant to Section 31 of the Act, 415 ILCS
5/31 (2006), against the Respondent.
2.
The Illinois EPA is an administrative agency of the
State of Illinois, created pursuant to Section 4 of the Act, 415
ILCS 5/4 (2006).
3.
At all times relevant to the Complaint, Respondent was
and is a municipal corporation duly organized and existing under
the laws of the State of Illinois.
B.
Site Description
1.
Hometown has no water supply treatment facility, but
is a satellite water supply that purchases finished Lake
Michigan water from the City of Chicago, Cook County, Illinois.
2.
Hometown has two (2) meter vaults. A primary meter
vault is at 87
th
Street and Kostner Avenue and another meter
vault is at 87
th
Street and Rumsey Avenue.
The water flows from
these two locations to Hometown's residents. The satellite
supply has 1,977 service connections within Hometown.
3.
On November 2, 2005, the Illinois EPA sent Hometown a
Non-Compliance Advisory Letter notifying Hometown that their
Notification of Certified Operator in Responsible Charge form
was no longer valid because Hometown's certified operator in
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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responsible charge of Hometown's public water supply failed to
complete the renewal training requirements to maintain his
certified operator status.
C.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the
Respondent has violated the following provisions of the Act, the
Public Water Supply Act, and Board regulations:
Count I:
Count II:
Failure to Have a Certified Operator
Responsible for the Public Water Supply, in
violation of Section 1 of the Public Water
Act, 415 ILCS 45/1 (2006)
i
and
Failure to Designate and Notify the Illinois
EPA of a Certified Operator Responsible for
the Public Water Supply, in violation of
Section 18(a) (2) of the Act, 415 ILCS
5/18 (a) (2) (2006) and Sections 603.102,
603.103(a), and 603.105(b) of the Board
Public Water Supply Regulations.
D.
Admission of Violations
The Respondent admits to the violations alleged in the
Complaint filed in this matter and referenced within Section
III.C herein.
E.
Compliance Activities to Date
1.
On November 20, 2006, the Superintendent of Oak Lawn's
Water Department advised the Illinois EPA that he has a Class A
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Electronic Filing - Received, Clerk's Office, March 5, 2008
certification and was willing to serve as Hometown's water
operator.
2.
On December 13, 2006, the Illinois EPA received the
completed Notification of Certified Operator in Responsible
Charge form for the Superintendent of Oak Lawn's Water
Department to serve as Hometown's interim public water supply
operator.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant, the Illinois EPA and the Respondent, and any
officer, trustee, 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,
trustees, 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
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.
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Electronic Filing - Received, Clerk's Office, March 5, 2008
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c) (2006), 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 to this
Stipulation state the following:
1.
Human health and the environment were threatened by
the Respondent's violations.
2.
The Hometown public water supply has social and
economic benefit.
3.
The public water supply is suitable for the area in
which it is located.
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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4.
It is both technically practicable and economically
reasonable to have a certified operator responsible for
Hometown's public water supply.
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) (2006),
provides, in pertinent part, as follows:
In determining the appropriate civil penalty to be
imposed under
. this Section, the Board is
authorized to consider any matters of record in
mitigation or aggravation of penalty, including but
not limited to the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on the part
of the respondent in attempting to comply with
requirements of this Act and regulations thereunder or
to secure relief therefrom as provided by this Act;
3.
any economic benefits accrued by the respondent
because of delay in compliance with requirements, in
which case the economic benefits shall be determined
by the lowest cost alternative for achieving
compliance;
4.
the amount of monetary penalty which will serve to
deter further violations by the respondent and to
otherwise aid in enhancing voluntary compliance with
this Act by the respondent and other persons similarly
subject to the Act;
5.
the number, proximity in time, and gravity of
previously adjudicated violations of this Act by the
respondent;
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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6.
whether the respondent voluntarily
self~disclosed,
in
accordance with subsection i of this Section, the non-
compliance to the Agency; and
7.
whether the respondent has agreed to undertake a
"supplemental environmental project," which means an
environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement
action brought under this Act, but which the
respondent is not otherwise legally required to
perform.
In response to these factors, the parties to this
Stipulation state as follows:
1.
On November 2, 2005, the Illinois EPA notified
Hometown that its certified operator failed to complete the
renewal training requirements, and therefore the Notification of
Certified Operator in Responsible Charge form submitted by
Hometown was no longer valid.
On December 13, 2006, a
replacement certified operator was named in the Notification of
Certified Operator in Responsible Charge form sent to the
Illinois EPA.
From at least November 2, 2005 through December
13, 2006, no certified operator was responsible for Hometown's
public water supply.
2.
Based on information provided by Respondent on its
efforts to obtain a certified operator, Respondent was diligent
in attempting to find a replacement for its retired certified
operator.
3.
An economic benefit of approximately $2,661.00 was
gained by the Respondent through its noncompliance. However,
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Electronic Filing - Received, Clerk's Office, March 5, 2008
TERMS OF SETTLEMENT
this amount would result in an economic
ha~dship
to the
Respondent, and the lesser amount of $1,000.00 was calculated
using an alternative penalty calculation for small communities.
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of One Thousand Dollars
($1,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant's knowledge, Respondent has no
previously adjudicated violations of the Act.
6.
Respondent did not voluntarily disclose the violations
that were the subject of the Complaint to the Illinois EPA.
7.
The settlement of this matter does not include a.
supplemental environmental project.
VIII.
A.
Penalty Payment
1.
a.
The Respondent shall pay a civil penalty in the
sum of One Thousand Dollars ($1,000.00) within thirty (30) days
from the date the Board adopts and accepts this Stipulation.
The Respondent stipulates that payment has been tendered to
Respondent's attorney of record in this matter in a form
acceptable to that attorney. Further, Respondent stipulates
that said attorney has been directed to make the penalty payment
on behalf of Respondent, within thirty
(~O)
days from the date
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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the Board adopts and accepts this Stipulation, in a manner
prescribed below.
b.
Payment shall be made by certified check or money
order, payable to the Illinois. EPA for deposit into the
Environmental Protection Trust Fund ("EPTF") and shall be sent
by first class mail and delivered to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
c.
The name, case number and the Defendant's Federal
Identification Number ("FEIN") s.hall appear on the face of the
certified check or money order. A copy of the certified check
or money order and any transmittal letter shall be sent to:
Jennifer A.Tomas
Assistant Attorney General
Environmental Bureau
Illinois Attorney General's Office
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
d.
For purposes of payment and collection, the
Respondent's attorney may be reached at the following address:
Joseph Cainkar
Louis F. Cainkar, Ltd.
30 N. LaSalle Street, Suite 3922
Chicago, Illinois 60602
e.
For purposes of payment and collection,
Respondent may be reached at the following address:
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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City of Hometown
Donald Robertson, Mayor
Hometown City Hall
4331 Southwest Highway
Hometown, Illinois 60456
f.
In the event of default, the Complainant shall be
entitled to reasonable costs of collection, including reasonable
attorney's fees.
B.
Interest on Penalties
1.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g)
(2006), interest shall accrue on any penalty amount owed by the
Respondent not paid within the time prescribed herein, at the
maximum rate allowable under Section 1003(a) of the Illinois
Income Tax Act, 35 ILCS 5/1003(a).
2.
Interest on unpaid penalties shall begin to accrue
from the date the penalty is due and continue to accrue to the
date payment is received by the Illinois EPA.
3.
Where partial payment is made on any penalty amount
that is due, such partial payment shall be first applied to any
interest on unpaid penalties then owing.
4.
All interest on penalties owed the Complainant shall
be paid by certified check or money order payable to the
Illinois EPA for deposit in the EPTF at the above-indicated
address. The name, case number, and the Respondent's FEIN shall
appear on the face of the certified check or money order. A
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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copy of the certified check or money order and the transmittal
letter shall be sent to:
Jennifer A. Tomas
Assistant Attorney General
Environmental Bureau
Illinois Attorney General's Office
69 W. Washington Street, Suite 1800
Chicago, Illinois 60602
C.
Future Compliance
Effective immediately, the Respondent shall continue to
comply with the Act, Public Water Act, and all applicable
regulations with regard to its public water supply, including
employing a certified operator to be responsible for its public
water supply.
D.
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.F, 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
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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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). 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.
E.
Cease and Desist
The Respondent shall cease and desist from future
violations of the Act, Public Water 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.
F.
Release from Liability.
In consideration of the Respondent's payment of the
$1,000.00 penalty and any specified costs and accrued interest,
its commitment 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
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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specified in Complainant's Complaint filed on October 1, 2007.
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 ILCS 5/3.315, or entity other than
the Respondent.
G.
Correspondence, Reports and Other Documents
Any and all correspondence, except for payments pursuant to
Sections VIII.A ("Penalty Payment") of this Stipulation, shall
be submitted as follows:
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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As to the Complainant
Jennifer A. Tomas
Assistant Attorney General
Environmental Bureau
Illinois Attorney General's Office
69 W. Washington Street, Suite isoo
Chicago, Illinois 60602
As to the Illinois EPA
Charles Gunnarson
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
As to the Respondent
Joseph Cainkar
Louis F. Cainkar,' Ltd.
30 N. LaSalle Street, Suite 3922
Chicago, Illinois 60602
City of Hometown
Donald Robertson, Mayor
Hometown City Hall
4331 Southwest Highway
Hometown, Illinois 60456
H.
Modification of Stipulation
The parties to this Stipulation 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.G. Any such request shall be made by
separate document, and shall not be submitted within any other
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Electronic Filing - Received, Clerk's Office, March 5, 2008
report or submittal required by this Stipulation. Any such
agreed modification shall be in writing, signed by authorized
representatives of each party to this Stipulation, 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.
I.
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 to this Stipulation agree that, if the
Board does not approve and accept this Stipulation and Proposal
for Settlement, then neither party to this Stipulation is bound
by the terms herein.
4.
It is the intent of the Complainant, Illinois EPA and
Respondent that the provisions of this Stipulation and Proposal
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Electronic Filing - Received, Clerk's Office, March 5, 2008
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.
J.
Execution of Document
This Stipulation shall become effective only when executed
by all parties to the Stipulation and the Board. This
Stipulation may be executed by the parties to this Stipulation
in one or more counterparts, all of which taken together, shall
constitute one and the same instrument.
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
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Attorney
MATTHEW J. DuNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
DOUGLASu;jP
SCOTT, Director
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ROBERT A. MESSI A
Chief Legal Counsel
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Electronic Filing - Received, Clerk's Office, March 5, 2008
CITY OF HOMETOWN
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Electronic Filing - Received, Clerk's Office, March 5, 2008
CERTIFICATE OF SERVICE
I, JENNIFER A. TOMAS, an Assistant Attorney General,
certify that on the 5
th
day of March 2008, I caused to be served
by u.S. Certified Mail, Return Receipt Requested, the foregoing
Stipulation and Proposal for Settlement and Motion for Relief
from Hearing Requirement to the parties named on the attached
Service List, by depositing same in postage prepaid envelopes
with the United States Postal Service located at 100 West
Randolph Street, Chicago, Illinois 60601.
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Electronic Filing - Received, Clerk's Office, March 5, 2008
