BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
)
Complainant,
)
)
vs.
)
PCB No. 09-22
)
(Enforcement)
WILLIAM WARREN,
)
)
Respondent.
)
NOTICE OF ELECTRONIC FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that
on December 11, 2009, I electronically filed 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.
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: December 10, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General
of the
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigatio
oman
Assistant Attorney
General
Environmental Bureau
Electronic Filing - Received, Clerk's Office, December 11, 2009
William Warren
2890 Governor's Drive
P.O. Box 189
Carlyle, IL 62231
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
SERVICE LIST
Electronic Filing - Received, Clerk's Office, December 11, 2009
-----------------------------------,
CERTIFICATE OF SERVICE
I hereby certify that I did on December 11, 2009, cause to be served by First Class Mail,
with postage thereon fully prepaid, by depositing
in a United States Post Office Box in
Springfield, Illinois, a true and correct copy of the following instruments entitled NOTICE OF
ELECTRONIC FILING, MOTION FOR RELIEF FROM HEARING REQUIREMENT and
STIPULATION
AND PROPOSAL FOR SETTLEMENT upon the persons listed on the Service
List.
This filing is submitted on recycled paper.
Electronic Filing - Received, Clerk's Office, December 11, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
)
WILLIAM WARREN,
)
PCB No. 09-22
(Enforcement)
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) (2008), 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, 4151LCS 5/31 (c)(1) (2008). In support of
this motion, Complainant states as follows:
1.
On October 7,2008, a Complaint was filed with the Illinois Pollution Control
Board ("Board") in this matter.
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, 4151LCS 5/31 (c)(2) (2008).
Electronic Filing - Received, Clerk's Office, December 11, 2009
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) (2008).
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: December
11, 2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATIORNEY GENERAL
MATIHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
. 'gation . is'on
:;:r-----
BY:
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Electronic Filing - Received, Clerk's Office, December 11, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
WILLIAM WARREN,
Respondent.
)
)
)
)
)
)
)
)
)
PCB NO. 09-22
(Enforcement)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General
ofthe State of Illinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
WILLIAM WARREN ("Respondent"), have agreed to the making
ofthis 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 fIlinois 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 October 7, 2008, 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 the
Respondent.
Electronic Filing - Received, Clerk's Office, December 11, 2009
2.
The Illinois EPA is an administrative agency ofthe 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 individual who is
involved in real estate development. At all times relevant to the Complaint, Respondent created,
caused to be constructed
or installed, an addition, alteration or change to an existing public,
community water supply, namely
an extension to the water main located along Bull Frog Lane near
the intersection with Walcott Road in Carlyle, Clinton County, Illinois ("site").
4.
This extension to the water main was created on a date prior to August 16, 2004.
B.
Allegations
of Non-Compliance
Complainant and the Tllinois EPA contend that the Respondent has violated the following
provisions
of the Act and Board regulations:
Count I
Count
II
C.
Non-Admission of Violation
Failure to Obtain a Construction Permit in violation
of
Section 15,415 ILCS 15(2006) and 35 II.Adm.Code 602.101
Construction Permit Violation
in violation of Section 18 of
the Act, 415 ILCS 18 (2006) and 35 11.Adm.Code 652.101
The Respondent neither admits nor denies the violation(s) 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
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
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
2
Electronic Filing - Received, Clerk's Office, December 11, 2009
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 adj udication 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 ofthe
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 oflocation 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 and the Illinois EPA's
information gathering responsibilities hindered by the Respondent's violations.
2.
There is social and economic benefit to the water line.
3.
Operation of the water line was suitable for the area.
4.
Obtaining a permit prior to construction at the site and compliance with its terms was
both technically practicable and economically reasonable.
5.
Respondent has subsequently complied with the Act and the Board Regulations.
3
Electronic Filing - Received, Clerk's Office, December 11, 2009
IV. CONSIDERATION OF SECTION 42(b) 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.
In
response to these factors, the parties to this Stipulation state as follows:
1.
The Respondent failed to obtain a permit for construction site activities prior to
beginning construction activities at the site. The violations began on or around August 16, 2004.
2.
Respondent was diligent in attempting to come back into compliance with the Act,
Board regulations and applicable federal regulations, once the Illinois EP A and the Illinois Attorney
General's Office notified it
of its noncompliance.
4
Electronic Filing - Received, Clerk's Office, December 11, 2009
3.
The Respondent realized an economic benefit by installing the water line without first
obtaining a permit; however, any economic benefit realized by that installation has been offset by
the assessed penalty.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts of
this matter, that a penalty of five thousand dollars ($5,000.00) 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 one previously
adjudicated violation
of the Act.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement ofthis matter does not include a supplemental environmenta1.project.
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of five thousand dollars
($5,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
B.
Stipulated Penalties, Interest and Default
1.
Ifthe Respondent fails to complete any activity or fails to comply with any response
or reporting requirement by the date specified in this Stipulation, the Respondent shall provide notice
to the Complainant and the Illinois EPA
of each failure to comply with this StipUlation and shall pay
stipulated penalties in the amount
of fifty dollars ($50) per day until such time that compliance is
achieved. The Complainant may make a demand for stipulated penalties upon the Respondent for
its noncompliance with this Stipulation. However, failure by the Complainant to make this demand
shall not relieve the Respondent
of the obligation to pay stipulated penalties. All stipulated penalties
shall be payable within thirty (30) calendar days
of the date the Respondent knows or should have
5
Electronic Filing - Received, Clerk's Office, December 11, 2009
known of its noncompliance with any provision of this Stipulation.
2.
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
ofthe 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.
3.
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
1
021 North Grand Avenue East
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
6
Electronic Filing - Received, Clerk's Office, December 11, 2009
D.
Future Compliance
l.
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.
2.
The Respondent shall cease and desist from future violations of the Act and Board
Regulations that were the subject matter
of the Complaint.
E.
Release from Liability
In consideration of the Respondent's payment of the $5,000.00 penalty, its commitment to
Cease and Desist as contained in Section V.D. above, 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
October 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 ofthis
Stipulation.
Nothing in this Stipulation is intended as a waiver, discharge, release,
or covenant not to sue
7
Electronic Filing - Received, Clerk's Office, December 11, 2009
for any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law
or inequity, 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.
F.
Enforcement and Modification 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.
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.
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
1. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
By:
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THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
DATE:
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8
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS
P. SCOTT, Director
Illinois Environmental Protection Agency
By:
Chief Legal Counsel
DATE:_\"1,..._\_<{_l
DJ---+---
Electronic Filing - Received, Clerk's Office, December 11, 2009
WILLIAM WARREN
BY:
DATE:
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Name: AI
ILLl(J
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u.l(dl{B.€.A/
Title:
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Approved as to Form:
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9
Electronic Filing - Received, Clerk's Office, December 11, 2009