BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by
LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
PCB No. 08-17
FELKER PHARMACY, INC., an Illinois
)
corporation, and
ROD BENNETT
)
(Enforcement- Water)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the 2nd day of April, 2009, I filed with the Clerk of the
Illinois
Pollution Control Board a Stipulation and Proposal for Settlement and a Motion to
Request Relief from Hearing Requirement,
'copies of which are attached hereto and are hereby
served upon you.
DATE: April
2, 2009
PEOPLE
OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
By,_t~~~~·*:
Assistant Attorney General
Environmental Bureau
North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
ssylvester@atg.state.il.us
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, April 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
PCB No. 08-17
FELKER PHARMACY, INC., an Illinois
)
corporation,
and ROD BENNETT
)
(Enforcement- Water)
CONSTRUCTION, INC., an Illinois
)
corporation,
)
)
Respondents.
)
MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and requests relief from the hearing
requirement in the above-captioned matter
as to Respondents, Felker Pharmacy, Inc. and Rod
Bennett Construction, Inc. In support thereof, the
Complainant states as follows:
1.
On August 20,2007, a Complaint was filed with the Illinois Pollution Control
Board ("Board") in this matter. On April 2, 2009, a Stipulation and Proposal for Settlement was
filed with the Board in this matter.
2.
Section 31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31(c)(2)
(2006), effective August 1, 1996, allows the parties in certain enforcement cases to
request relief from the mandatory hearing requirement where the parties have submitted to the
Board a stipulation
and proposal for settlement.
3.
Section 31(c)(2)
of the Act, 415 5/31(c)(2) (2006), provides as follows:
Notwithstanding the provisions
of subdivision
(1)
of this subsection (c), whenever a
Electronic Filing - Received, Clerk's Office, April 2, 2009
complaint has been filed on behalf of the Agency or by the People of the State of
Illinois, the parties may file with the Board a stipulation and proposal for
settlement accompanied by a request for relief from the requirement of a hearing
pursuant to subdivision (1). Unless the Board, in its discretion, concludes that a
hearing will be held,
the Board shall cause notice of the stipulation, proposal and
request for relief to be published and sent in the same manner as is required for
hearing
pursuant to subdivision
(1)
of this subsection. The notice shall include a
statement that any person may file a written demand for hearing within 21 days
after receiving
the notice. If any person files a timely written demand for hearing,
the Board shall deny the request for relief from a hearing and shall hold a hearing
in accordance with the provisions
of subdivision (1).
4.
No hearing is currently scheduled in the instant case.
5.
The Complainant requests the relief conferred by Section 31(c)(2) of the Act, 415
ILCS 5/31(c)(2) (2006).
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by USA
MADIGAN, Attorney General of the State of Illinois, requests relief from the requirement of a
hearing
pursuant to 415 ILCS 5/31 (c)(2)' (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General of the State of Illinois
BY' __
~~~*_~
Assistant Attorney General
__
Environmental Bureau
North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
ssylvester@atg.state.il.us
Electronic Filing - Received, Clerk's Office, April 2, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
)
v.
)
)
FELKER PHARMACY, INC., an Illinois
)
corporation, and ROD BENNETT
)
CONSTRUCTION, INC., an Illinois
) .
corporation,
)
)
Respondents.
)
PCB No.
08-17
(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 Felker Pharmacy, Inc. ("Felker Pharmacy") and Rod Bennett Construction, Inc. ("Bennett
Construction")
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 Water Pollution 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.
1
Electronic Filing - Received, Clerk's Office, April 2, 2009
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On August 20, 2007, a Complaint was filed on behalf of the People of the State of
Illinois by Lisa Madigan, Attorney General ofthe 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
Felker Pharmacy. The August 20,
2007 Complaint was also 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,
pursuant to the terms and provisions
of Section 31 (d) of the Act, 415 ILCS 5/31 (d) (2006), as to
Bennett Construction.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to
Section4 ofthe Act, 415 ILCS 5/4 (2006).
3.
At all times relevant to the Complaint, Felker Pharmacy was and is an Illinois
corporation that is authorized to transact business in the
State of Illinois. Felker Pharmacy is and
was the owner
of a commercial development known as Snyder Pharmacy, which was comprised
of approximately 1.85 acres and located near the intersection of Galena Avenue and Everett
Street, Dixon, Lee County, Illinois
("Site").
4.
At all times relevant to the Complaint, Bennett Construction was and is an Illinois
corporation that is authorized to transact business in the
State of Illinois. Bennett Construction
was the general contractor retained
by Felker Pharmacy responsible for the development ofthe
Site.
5.
Stormwater run-off from the Site flows to and through a storm sewer that runs
along Hennepin Avenue at the
Site. The storm sewer discharges directly to the Rock River.
2
Electronic Filing - Received, Clerk's Office, April 2, 2009
6.
On October 3, 2005, the Illinois EPA issued to Snyder Drug Stores coverage
under National Pollutant Discharge Elimination System ("NPDES") stormwater general permit
No. ILRlOD924 for the commercial development known as Felker-Snyder Pharmacy
("NPDES
Permit No. ILR10D924"). On April 12, 2006, NPDES Permit No. ILR10D924 was terminated
by the Illinois EPA after construction activities at the Site were completed and final stabilization
was achieved.
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that Felker Pharmacy and Bennett
Construction have violated the following provisions of the Act and Board Water Pollution
Regulations:
Count I:
Count II:
Count III:
Water Pollution, in violation
of Section 12(a) of the Act, 415 ILCS
5/12(a) (2006);
Creating a Water Pollution Hazard, in violation
of Section 12( d) of the
Act, 415
ILCS 5/12(d) (2006); and
Failure to Obtain an NPDES Stormwater Permit, in violation of Section
12(f) ofthe Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) ofthe
Board Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
C.
Non-Admission of Violations
Felker Pharmacy and Bennett Construction neither admit nor deny the violations alleged
in the Complaint filed in this matter and referenced herein.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA
and Felker Pharmacy and Bennett Construction, and any officer, director, agent, or employee
of
Felker Pharmacy and Bennett Construction, as well as any successors or assigns of Felker
Pharmacy or Bennett Construction. Felker Pharmacy and Bennett Construction shall not raise as
3
Electronic Filing - Received, Clerk's Office, April 2, 2009
a defense to any enforcement action taken pursuant to this Stipulation the failure of any of their
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
Felker Pharmacy
or Bennett Construction 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 environment was threatened by Respondents' failure to implement adequate
stormwater pollution control measures at the
Site and the Illinois EPA's information gathering
responsibilities hindered
by the Respondents' failure to obtain coverage under the general
4
Electronic Filing - Received, Clerk's Office, April 2, 2009
NPDES stormwater permit prior to initiating construction activities at the Site.
2.
The Site has social and economic benefit.
3.
Respondents' construction activities at the Site were suitable for the area in which
they occurred.
4.
Obtaining an NPDES permit prior to engaging in construction activities at the Site
and compliance with the permit's terms was both technically practicable and economically
reasonable.
5.
Respondents have subsequently complied with the Act and Board Water Pollution
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;
5
Electronic Filing - Received, Clerk's Office, April 2, 2009
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 Asupplemental
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.
Respondents' failure to timely apply for and obtain coverage under an NPDES
storm water permit denied the Illinois EPA the opportunity for oversight during critical phases of
the construction project at the Site. Further, Complainant alleges that contaminants discharged
from the Site in storm water runoff were of sufficient volume to clog the storm sewer serving the
Site. Respondents represent that contaminants discharged from the Site in storm water runoff did
not clog the storm sewer serving the Site. Respondents' failure to obtain NPDES storm water
permit coverage endured for approximately five months.
2.
Respondents were diligent in attempting to come back into compliance with the
Act and Board Water Pollution Regulations, once the Illinois
EPA notified them of their
noncompliance.
3.
The civil penalty obtained includes any economic benefit that Respondents may
have accrued, as a result
of the delay in compliance.
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty
of Seven Thousand Five Hundred Dollars ($7,500.00) will serve to deter further
violations and aid in future voluntary compliance with the Act and Board Water Pollution
Regulations.
5.
To Complainant's knowledge, Respondents have no previously adjudicated
violations of the Act.
6
Electronic Filing - Received, Clerk's Office, April 2, 2009
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
V. TERMS OF SETTLEMENT
A.
penalty Payment
Felker Pharmacy and Bennett Construction shall jointly and severally pay a civil penalty
in the sum
of Seven Thousand Five Hundred Dollars ($7,500.00) within thirty (30) days from the
date the Board adopts and accepts this Stipulation.
B.
Interest and Default
1.
If Felker Pharmacy and/or Bennett Construction fail to make any payment
required
by this Stipulation on or before the date upon which the payment is due, Felker
Pharmacy and/or Bennett Construction 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 Felker Pharmacy and/or Bennett Construction 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.
7
Electronic Filing - Received, Clerk's Office, April 2, 2009
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
1
021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name, case number and the Respondents' 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:
Stephen 1. Sylvester
Environmental Bureau
Illinois Attorney General's
Office
69 W. Washington St., #1800
Chicago, Illinois 60602
D.
Future Compliance
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.
E.
Release from Liability
In
consideration of Felker Pharmacy and Bennett Construction payment ofthe $7,500.00
penalty, and upon the Board' approval of this Stipulation, the Complainant releases, waives and
discharges Felker Pharmacy and Bennett Construction from any further liability
or penalties for
the violations
of the Act and Board Water Pollution Regulations that were the subject matter of
the Complaint herein. The release set forth above does not extend to any matters other than those
8
Electronic Filing - Received, Clerk's Office, April 2, 2009
expressly specified in Complainant' Complaint filed on August 20, 2007. The Complainant
reserves, and this Stipulation is without prejudice to, all rights
of the State of Illinois against
Felker Pharmacy and Bennett Construction 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.
and liability for natural resources damage arising out of the alleged violations;
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 ofthe Act, 415 ILCS
5/3.315,
or entity other than the Felker Pharmacy
and Bennett Construction.
F.
Enforcement and Modification of Stipulation
Upon the entry ofthe 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 .
. 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.
9
Electronic Filing - Received, Clerk's Office, April 2, 2009
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
PROTECTION
AGENCY
LISA MADIGAN
Attorney General
of the State of Illinois
MATTHEW
J. DUNN, Chief
u,y...."..,.al Enforcement!
BY:
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
Enviro
=~a:;:u~~~::::::::::::::'
Chief Legal Counsel
Assistant Attorney General
DATE:
{~\ ~\~'8
<:
""
FELKER PHARMACY, INC.
BY:
Name:
-----------------
Title:
---------------
ROD BENNETT CONSTRUCTION,
INC.
BY:
Name:
-----------------
Title:
---------------
DATE: ______________ _
DATE: _______ _
10
Electronic Filing - Received, Clerk's Office, April 2, 2009
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
PROTECTION AGENCY
LISA MADIGAN
Attorney General
of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
DATE:
_______ _
FELKER
PHARMACY, INC.
ROD BENNETT CONSTRUCTION,
INC.
BY:
Name:
-----------------
Title:
----------------
DOUGLAS P. SCOTT, Director
Illinois Environmental
Protection Agency
BY:
---------------------
ROBERT A. MESSINA
Chief Legal Counsel
DATE:
-----------------
DATE: ______________ __
DATE: _______ _
10
Electronic Filing - Received, Clerk's Office, April 2, 2009
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
PROTECTION AGENCY
LISA
MADIGAN
Attorney General
of the State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
ROSEMARIE
CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
DATE:
________ _
FELKER PHARMACY, INC.
BY:
Name:
-----------------
Title:
----------------
ROD BENNETT CONSTRUCTION,
INC.
'
DOUGLAS
P. SCOTT, Director
Illinois Environmental Protection Agency
BY: ____________________ _
ROBERT
A.
MESSINA
Chief Legal Counsel
DATE:
________________ _
DATE:
_______ _
Name:~oc:>.....0
~
Title:
;p
((.€f,.RlV.;1
10
Electronic Filing - Received, Clerk's Office, April 2, 2009
.-
\
James E. Meason, Esq.
113 W. Main Street
Rockton,IL 61072-2416
Eric D. Morrow, Esq.
Smith
Hahn Morrow & Floski, P.c.
129 South Fourth Street
P. O. Box 10
Oregon, IL 61061-0010
Thomas H. Boswell
Hinshaw
&
Culbertson
100 Park Avenue
P.O. Box 1389
Rockford,
IL 61105-1389
John
D. Lanpher
Guyer
& Enichen, P.c.
2601 Reid Farm Road, Suite B
Rockford,
IL 61114
Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street, 11th Floor
Chicago,
IL 60601
SERVICE LIST
Electronic Filing - Received, Clerk's Office, April 2, 2009
.,
CERTIFICATE OF SERVICE
I, STEPHEN J . SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this
2nd day of April, 2009, the foregoing Stipulation and Proposal for
Settlement, Motion to Request Relief from Hearing Requirement
and Notice of Filing upon the
persons listed
on the Service List by depositing same in an envelope, first class postage prepaid,
with the
United States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before
the
hour of 5:00 p.m.
Electronic Filing - Received, Clerk's Office, April 2, 2009
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