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RECEIVED

CLERK'S OFFICE

AUG

2 0 2008

STATE OF ILLINOIS

Pollution Control Board

Lisa Madigan

ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

Assistant Clerk of the Board

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 West Randolph

Chicago, Illinois 60601

Re:?

People v. Gary Cates, et al.

PCB No. 08-26

Dear Clerk:

Enclosed for filing please find the original and one copy 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 envelope.

Thank you for your cooperation and consideration.

500 South Second Street

Springfield, Illinois 62706

(217) 782-9031

SJJ/pjk

Enclosures

500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046

100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806

MATTHEW

DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

BY:

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

GARY CATES, d/b/a CHERRY STREET

AUTOMOTIVE, CALVIN BOOTH,

d/b/a AUTO SALVAGE ILLINOIS, and

S. I. PROMOTION FLORA, INC.,

Respondents.

PCB No. 08-26

(Enforcement)

RECEIVED

CLERK'S OFFICE

AU6 2 0 2008

STATE OF ILLINOIS

Pollution Control Board

Crain, Miller & Wernsman, Ltd.

623 E. Broadway

P.O. Box 867

Centralia, IL 62801

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

JANAS I E

Assista A torney General

Environmental Bureau

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: August 19, 2008

CERTIFICATE OF SERVICE

I hereby certify that I did on August 19, 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 SETTLEMENT:

Crain, Miller & Wernsman, Ltd.

623 E. Broadway

P.O. Box 867

Centralia, IL 62801

and the original and ten copies by First Class Mail with postage thereon fully prepaid of the

same foregoing instrument(s):

To:?

John T. Therrault, Assistant 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

STEP

?SIE

Assistant A or ey General

This filing is submitted on recycled paper.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

PCB No. 08-26

(Enforcement)

RECEIVED

CLERK'S OFFICE

Respondents.

AUG .2 0 2008

STATE OF ILLINOIS

Pollution Control Board

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 5/31(c)(1) (2006). In support of

this motion, Complainaht 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.

3.?

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).

GARY CATES, d/b/a CHERRY STREET

AUTOMOTIVE, CALVIN BOOTH,

d/b/a AUTO SALVAGE ILLINOIS, and

S. I. PROMOTION FLORA, INC.,

MATTHEW

DUNN, Chief

Environmental Enforcement/Asbestos

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).

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: August 19, 2008

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

ATTORNEY GENERAL

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

PCB No. 08-26

(Enforcement)

STATE

legaSid

STIPULATION AND PROPOSAL FOR

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TABLE OF CONTENTS

I.?

STATEMENT OF FACTS ?

A.?

Parties to the Stipulation ?

Allegations of Non-Compliance

C.?

Non-Admission of Violations

D.?

Compliance Activities to Date

APPLICABILITY ?

IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE

IV. CONSIDERATION OF SECTION 42(h) FACTORS ?

TERMS OF SETTLEMENT

A. Penalty Payment ?

B. Interest and Default

C. Payment Procedures ?

Future Compliance

E.?

Release from Liability

F.?

Enforcement of Stipulation ?

GARY CATES, d/b/a CHERRY STREET

AUTOMOTIVE, CALVIN BOOTH,

d/b/a AUTO SALVAGE ILLINOIS,

and S. I. PROMOTION FLORA, INC.,

Respondents.

G.?

Execution of Stipulation

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

GARY CATES, d/b/a CHERRY STREET

AUTOMOTIVE, CALVIN BOOTH,

d/b/a AUTO SALVAGE ILLINOIS,

and S. I. PROMOTION FLORA, INC.,

Respondents.

PCB No. 08-26

(Enforcement)

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

GARY CATES, d/b/a CHERRY STREET AUTOMOTIVE, and CALVIN BOOTH, d/b/a AUTO

SALVAGE ILLINOIS and S.I. PROMOTION FLORA, INC. ("Respondents"), 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. This stipulation of facts is made and agreed upon

for purposes of settlement only and as a factual basis for the Board's approval of this Stipulation

and issuance of relief. None of the facts stipulated herein shall be introduced into evidence in any

other proceeding regarding the violations of the Illinois Environmental Protection Act ("Act"), 415

ILCS 5/1

et seq.

(2006), and the Board's Regulations, alleged in the Complaint except as otherwise

provided herein. It is the intent of the parties to this Stipulation that it be a final adjudication of this

matter.

I. STATEMENT OF FACTS

Parties to the Stipulation

On October 1, 2007, 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 (2006), against the

Respondents.

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).

At all times relevant to the Complaint, Respondent Gary Cates owned and operated

a business known as Cherry Street Automotive located at 810 Elm Street, Carmi, White County,

Illinois ("facility" or "site"). Respondent Calvin Booth owned and conducted an auto salvage

operation at 810 Elm Street, Carmi, Illinois under the name of Auto Salvage Illinois, an assumed

name for S. I. Promotion Flora, Inc., an Illinois for-profit corporation. At all times relevant to the

Complaint M.G.J., Inc held title to the property at 810 Elm Street, Carmi, Illinois. Respondent Gary

Cates was the Registered Agent for M.G.J., Inc. M.G.J., Inc., was an Illinois corporation which was

dissolved in 1990.

B.?

Allegations of Non-Compliance

Complainant and the Illinois EPA contends that the Respondents have violated the following

provisions of the Act in that Respondents caused or allowed the spillage or discharge of gasoline

and other automotive fluids:

Count I: Section 21(a) of the Act, 415 ILCS 5/21(a) (2006),

Section 55(a)(1) of the Act, 415 ILCS 5/55(a)(1)

(2006).

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Non-Admission of Violations

The Respondents neither admit nor deny the violation(s) alleged in the Complaint filed in

this matter and referenced within Section I.B herein.

Compliance Activities to Date

The Respondents have completed all required remediation of the site.

II. APPLICABILITY

This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA and

the Respondents, and any officer, director, agent, or employee of the Respondents, as well as any

successors or assigns of the Respondents. The Respondents 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. This Stipulation may be used against the Respondents in any

subsequent enforcement action or permit proceeding as proof of a past adjudication of violation

of the Act and the Board Regulations for all violations alleged in the Complaint in this matter, for

purposes of Sections 39 and 42 of the Act, 415 ILCS 5/39 and 42 (2006).

III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE

Section 33(c) of the Act, 415 ILCS 5133(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:

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;

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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.

In response to these factors, the parties state the following:

Human health and the environment were threatened by the spillage or discharge of

gasoline and other automotive fluids.

There was a small social and economic benefit to the facility.

Operation of the facility was suitable for the area in which it occurred.

Eliminating the spillage or discharge of gasoline and other automotive fluids is both

technically practicable and economically reasonable.

Respondent has subsequently complied with the Act and the Board Regulations.

IV. CONSIDERATION OF SECTION 42(h) FACTORS

Section 42(h) of the Act, 415 ILCS 5142(h)(2006), 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

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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

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:

The Respondent caused or allowed the spillage or discharge of gasoline and other

automotive fluids at the site. The improper release and disposal of automotive fuel, even in small

amounts, can threaten the environment as well as the health of humans. The violations took place

over a period of two months.

Respondents were diligent in attempting to come back into compliance with the Act,

Board regulations and applicable federal regulations, once the Illinois EPA notified it of its

noncompliance.

The Respondents avoided the cost of a proper containment system for the auto

salvage operation, and thus realized a small economic benefit.

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

penalty of Eight Thousand Dollars ($8,000.00) 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.

There was no self-disclosure in this matter.

The settlement of this matter does not include a supplemental environmental project.

V. TERMS OF SETTLEMENT

Penalty Payment

The Respondents shall pay a civil penalty in the sum of Eight Thousand Dollars ($8,000.00),

Four Thousand Dollars ($4,000.00) from each Respondent, within thirty (30) days from the date

the Board adopts and accepts this Stipulation.

Interest and Default

If the Respondents fail to make any payment required by this Stipulation on or

before the date upon which the payment is due, the Respondents shall be in default and the

remaining unpaid balance of the penalty, plus any accrued interest, shall be due and owing

immediately. In the event of default, the Complainant shall be entitled to reasonable costs of

collection, including reasonable attorney's fees.

Pursuant to Section 42(g) of the Act, 415 I LCS 5/42(g) (2006), interest shall accrue

on any payment not paid within the time period prescribed herein. Interest on unpaid penalties

shall begin to accrue from the date such are due and continue to accrue until the date full payment

is received. When partial payment is made on nay penalty amount that is due, such partial

payment shall be first applied to any interest on unpaid payment then owing.

Payment Procedures

All payments required by this Stipulation shall be made by certified check or money order

payable to the Illinois EPA for deposit into the Environmental Protection Trust Fund ("EPTF").

Payments 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

The name, case number and the Respondents' federal tax identification numbers shall appear on

the face of the certified check or money order. A copy of the certified check or money order and

any transmittal lett- shall be sent to:

Environmental Bureau

Illinois Attorney General's Office

500 South Second Street

Springfield, Illinois 62706

D.?

Future Comp

In addition to any other authorities, the Illinois EPA, its employees and

representatives, and the Attorney General, her employees 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 conducting inspections and evaluating compliance status.

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.

This Stipulation in no way affects the responsibilities of the Respondents to comply

with any other federal, state or local laws or regulations, including but not limited to the Act and the

Board Regulations.

-7-

Release from Liability

In consideration of the Respondents' payment of the $8,000.00 penalty, and upon the

Board's approval of this Stipulation, the Complainant releases, waives and discharges the

Respondents from any further liability or penalties for the 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

October 1, 2007. The Complainant reserves, and this Stipulation is without prejudice to, all rights

of the State of Illinois against the Respondents with respect to all other matters, including but not

limited to, the following:

criminal liability;

liability for future violation of state, federal, local, and common laws and/or

regulations;

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

liability or claims based on the Respondents' 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 Respondents.

Enforcement of Stipulation

Upon the entry of the Board's order approving and accepting this Stipulation, that Order is

a binding and enforceable order of the Board and may be enforced as such through any and all

available means.

-8-

G.?

Execution of Stipulation

The undersigned representatives for each party to this Stipulation 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.

ROBERT A MESSINA

Chief Legal Counsel

WHEREFORE, the parties to this Stipulation request that the Board adopt and accept

the foregoing Stipulation and Proposal for Settlement as written.

PEOPLE OF THE STATE OF ILLINOIS,

FOR THE ILLINOIS ENVIRONMENTAL

MATTHEW J. DUNN, Chief

Environmental Enforcement/

Asbestos Litigation Division

DOUGLAS P. SCOTT, Director

Illinois Environmental Protection Agency

BY:

THOMAS DAVIS, Chief

Environmental Bureau

Assistant Attorney General

tr ?

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