MAR
19
2Q09
STATE
OF
ILLINOIS
PoUutton
Control
Board
OFFICE
OF
THE
ATTORNEY
GENERAL
STATE
OF
ILLINOIS
Lisa
Madigan
ATTORNEY
GENERAL
March
17, 2009
John
T. Therriault,
Assistant
Clerk
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.
Carri
Scharf
Materials
Company
PCB
No.
08-62
Dear
Clerk:
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
envelope.
Thank you
for
your
cooperation
and
consideration.
Very
truly
yours,
Andrew
J.
icholas
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
AJ
N/pjk
Enclosures
500
South
Second
Street,
Springfield,
Illinois
62706
•
(217)
782-1090
• T’T’Y:
(877)
844-5461
• Fax:
(217)
782-7046
100
West
Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
•
‘l’TY:
(800)
964-3013
•
Fax:
(312)
814-3806
1001
East
Main,
Carbondale,
Illinois
62901
•
(618)
529-6400
• ‘T”T’Y:
(877)
675-9.09
•
F,r
(618) S29-6416
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE
STATE OF ILLINOIS,
)
Complainant,
)
vs.
)
PCB No. 08-62
)
(Enforcement - Water)
CARRI SCHARF MATERIALS COMPANY,)
dibla FARMDALE SAND
&
GRAVEL
PIT,
)
an
Illinois
corporation,
)
Respondents.
RECWV
NOTICE OF FILING
CII.R
OFF
To:
Clayton Moushon
Attorney
at
Law
OF
ILUI$OISd
1009
lIlini Drive
pSoutiOr
Contro’
Boat
East
Peona,
IL 61611
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
MATTHEWJ. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:___________
ANDRE
J.
NICHOLAS
Assistant
Attorney
General
Environmental Bureau
500
South Second Street
Springfield,
Illinois 62706
217/782-9031
Dated: March 17,
2009
CERTIFICATE
OF
SERVICE
I
hereby certify
that
I did
on March
17, 2009,
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:
To:
Clayton
Moushon
Attorney
at
Law
1009
lllini
Drive
East
Peoria,
IL 61611
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
Andéw
J.
Ni’holas
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. 08-62
)
(Enforcement)
CARRI
SCHARF MATERIALS
COMPANY,)
d/b!a FARM DALE SAND & GRAVEL PIT,
)
CLERK5
OFFI
an Illinois corporation,
)
MAR
192009
Respondents.
)
STATE
OF
ILUId
Pollutiot’
Contro
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) (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, 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 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 5131(c)(2) (2006).
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)
(2006).
Respectfully
submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
LISA
MADIGAN
ATTORNEY GENERAL
MATTHEWJ.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:________
ANDREW4”NICHOLAS
Environmental Bureau
Assistant
Attorney
General
500
South
Second
Street
Springfield, Illinois
62706
217/782-9031
Dated:
March
17,
2009
2
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
PEOPLE
OF
THE
STATE
OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB NO. 08-62
)
Enforcement -Water
CARRI SCHARF MATERIALS COMPANY,
)
d/b/a FARMDALE SAND & GRAVEL PIT
)
an Illinois corporation,
)
MAR
192009
STATE
OF
ILUNOS
Respondent.
)
pollution
Controi
Board
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 CARRI SCHARF MATERIALS COMPANY (“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. 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
A.
Parties to the Stipulation
1.
On April
7,
2008,
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
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 an Illinois
corporation that is authorized to transact business in the State of Illinois.
At
all times relevant
to
the Complaint, Respondent owned and operated a sand and gravel facility located
in East Peoria,
Tazewell County, Illinois (“site’).
4.
On June 16, 2006, the Illinois EPA inspected the site and observed
that the
settling
pond and filtration pit on-site
was
discharging waste
water to an unnamed stream
that is
a
tributary to Farm Creek.
The
settling
pond was discharging through one of three
breached
areas in the berm that separates the pond from the streambed.
The
Illinois EPA further
noted that
the filtration pit was discharging waste water
down the site entrance road
to the receiving
stream.
The water discharging
from the pit was turbid and the streambed at
that location was
covered in
sand and gravel. Although the breach
of
the berm was
caused by an unusually
heavy rainfall,
the
Respondent remains liable under the Act.
2
5.
During the
June
16, 2006 inspection, it was also
noted that dredged material
from
the
pond was being dumped at the outlet of the pond, along the edge of
the stream. Leachate
from the material was draining into the receiving stream.
6.
On June 16, 2006,
the
Respondent was operating under Operating Permit #2006-
MO-2
133. Special Condition of Operating Permit #2006-MO-2 133 does not
allow discharge
of
storm water
or
waste
water unless an NPDES Permit is obtained.
7.
On June 16, 2006, the Respondent did not have an
NPDES Permit.
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondent
has violated
the
following
provisions of the Act and Board regulations:
Count I:
By
causing or allowing or
threatening the
discharge
of
contaminants into
the waters
of the
state, the Respondent
violated Section 12(a) of the Act,
415 ILCS 5/12(a)
(2006).
By depositing
contaminants upon the land in
such place and manner
so
as to create a water pollution
hazard, the
Respondent violated Section 12(d) of the Act, 415 ILCS
5/12(d) (2006).
Count II:
By causing or allowing the discharge of
waste water and storm
water
without
an NPDES
Permit, the Respondent violated its
Operating Permit
and violated Section 12(f) of the Act, 415 ILCS
5/12(f) (2006) and Section
309.102(a)
of the Boards Water
Pollution Regulations, 35 Ill.
Adm.
Code
309.102(a) (2005).
Count III:
By
causing
or allowing
the discharge of waste water into the
receiving
stream without
an NPDES
Permit,
the Respondent violated Section 12(f)
of
the Act,
415 ILCS 5/12(f)
(2006) and Sections 309.102(a) and
404.10
1(a)(1) of the Board’s Water
Pollution Regulations, 35 Ill. Adm.
Code 309.102(a), 404.10 1(a)(1) (2005).
C.
Admission of Violations
The
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
3
litigation. By entering into this Stipulation and complying with its terms, the Respondent
does
not affirmatively
admit the allegations of the
violations
within
the Complaint and referenced
within
Section
1 .B.
herein,
and this Stipulation shall not be interpreted as including such
admission.
D.
Compliance Activities
to Date
The Respondent is utilizing the following best management practices to eliminate
discharges and reach compliance:
1.
Modified the berm on the settling pond to prevent future discharges;
2.
Added rip
rap
to the berm to minimize erosion and to maintain
the
integrity
of
the
berm;
3.
Inspects the berm and modifies
as
necessary
to direct runoff
to existing
settling pond;
4.
Performed site grading
to direct water to ponds and away from the on site
stream;
5.
Relocated settling pond dredged material
stockpiles farther away from the
onsite
stream;
6.
Installed rip rap in the outlet of the
sediment pond;
7.
Installed ditch checks
in its road ditch;
8.
Place topsoil
and seed on all disturbed areas
of facility; and
9.
Installed
silt fencing at the perimeter
of areas to be final
graded.
II.
APPLICABILITY
This Stipulation
shall apply to and be binding
upon the Complainant, the Illinois EPA
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
4
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 Respondent 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 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.
The waters of
the State were threatened and the Illinois
EPAs information
gathering responsibilities hindered by the Respondent’s violations.
2.
There is social and economic benefit to the Respondent’s facility.
5
3.
Operation of the facility
was suitable for the
area
in
which it occurred.
4.
Obtaining a
permit prior to discharge of contaminants at the
site
and compliance
with
its terms is both technically practicable
and economically reasonable.
5.
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
5/42(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:
1.
the duration and gravity
of
the violation;
2.
the presence or absence of due diligence on the part of the respondent
in
attempting
to comply with requirements of this Act and regulations
thereunder
or to secure relief therefrom as provided by this Act;
3.
any economic
benefits accrued by the respondent because of delay in
compliance
with requirements, in which case the economic benefits
shall
be determined
by the
lowest
cost alternative for achieving compliance;
4.
the amount
of monetary penalty which will serve to deter further
violations by the respondent
and to otherwise aid in enhancing voluntary
compliance
with this Act
by
the respondent
and other persons similarly
subject to
the Act;
5.
the
number, proximity in time, and gravity
of previously adjudicated
violations
of this Act
by
the respondent;
6.
whether
the respondent voluntarily
self-disclosed, in accordance with
subsection
i of this Section, the non-compliance
to the Agency; and
7.
whether
the respondent has
agreed to undertake a ‘supplemental
environmental
project,” which means an
environmentally beneficial
project that
a respondent agrees to undertake
in
settlement
of an
enforcement action
brought under this Act, but which
the respondent is
not
otherwise
legally
required
to perform.
6
In response to these factors, the parties to this Stipulation state as
follows:
1.
Violations were observed at the site during an inspection on
June
16,
2006 and the
violations continued until at least June
18,
2007. The Respondent retained an
outside third
party
engineer to address the erosion control problems identified by the Illinois
Environmental
Protection
Agency.
The engineer subsequently implemented an erosion control
plan. The
facilities, as engineered also failed to adequately control and operate in
accordance with the
terms
and
conditions
of the
facilities operating permit causing discharge to the waters of
the
state.
2.
The
Respondent has demonstrated due diligence in attempting to
correct the
violations.
3.
There is no economic benefit of
noncompliance in this matter.
4.
Complainant and the Illinois EPA have determined, based
upon
the specific facts
of this matter,
that
a penalty of
$7,000.00
will
serve to deter further violations and aid
in
future
voluntary compliance with
the
Act
and Board regulations.
5.
To Complainant’s and the Illinois EPA’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.
7
V. TERMS OF
SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of Seven
Thousand
Dollars
($7,000.00) within thirty (30) days from the date the Board
adopts
and
accepts
this Stipulation.
B.
Stipulated Penalties, Interest and
Default
1.
If the Respondent fails to make any payment
required
by this Stipulation on or
before
the date
upon
which the payment is due, the Respondent 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.
2.
Pursuant to Section 42(g) of the Act,
interest shall
accrue on any
penalty
amount
owed
by
the Respondent not paid
within the time prescribed herein. Interest
on unpaid penalties
shall begin to accrue from the
date such are due and continue to accrue
to
the date full payment
is
received. 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.
C.
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
8
P.O. Box 19276
Springfield, IL 62794-9276
The name,
case
number
and
the Respondent’s federal tax identification number shall 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:
Environmental Bureau
Illinois Attorney General’s Office
500 South Second Street
Springfield, Illinois 62706
B.
Future Compliance
1.
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.
2.
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.
3.
The Respondent shall cease
and
desist from future violations of the Act
and Board
Regulations that
were the subject matter
of the
Complaint.
9
E.
Release from Liability
In
consideration
of
the
Respondent’s payment of the
$7,000.00
penalty,
completion
of all
activities
required
hereunder,
and upon the Board’s approval of this
Stipulation, the Complainant
releases, waives and discharges the Respondent 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 April
7,
2008. 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
3.3
15
of the
Act,
415
ILCS 5/3.3 15 (2006), or entity
other
than the
Respondent.
10
F.
Enforcement
and
Modification
of Stipulation
1.
Upon
the entry
of the
Boards 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.
G.
Execution
of
Stipulation
The
undersigned
representatives
for
each
party
to this
Stipulation
certify
that
they
are
filly
authorized
by
the
party
whom
they represent
to enter
into the terms
and
conditions
of
this
Stipulation
and to
legally
bind
them
to
it.
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,
LISA
MADIGAN
Attorney
General
State
of
Illinois
MATTHEW
J.
DUNN,
Chief
Environmental
Enforcement!
Asbestos
Litigation
Division
BY:
THOMAS
DAVIS,
Chief
Environmental
Bureau
Assistant
Attorney
General
DATE:__________
CARRI
SCHARF
MATERIALS
COMPANY
BY:
Name:
Title:
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€
T
DATE:
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11
12
FOR
THE ILLINOIS
ENVIRONMENTAL
1’)
PROTECTION AGENCY
BY
4.
ROR’ERcI. MESSINA
DOUGLAS P. SCOTT, Director
Chief Legal Counsel
Illinois Environmental Protection Agency
DATE: