•
RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERKS OFFICE
PEOPLE OF THE STATE OF ILLINOIS
)
SEP 22 2004
Complainant,
p~I~d
v.
)
•~~No.04-227
ROGERS DEVELOPMENT COMPANY
an Illinois Corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that today we have filed with the
Pollution Control Board the following Stipulation and Proposal
for Settlement and Request for Relief from the Hearing
Requirement on behalf,of the People of the State of Illinois,
a
copy of which is attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF
THE. STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY
_________
JOEL J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
•
188 W. Randolph St.,
20th Floor
Chicago, Illinois
60601
(312)
814-6986
DATE:
September 22,
2004
THIS FILING IS
SUBMITTED
ON RECYCLED PAPER
SERVICE LIST
Mr.
Patrick W.
Hayes,
Esq.
Guyer & Enichen
2601 Reid Farm Road
Rockford,
IL 61114
Mr. Charles Gunnarson,
Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois
62794-9276
RECE~VED
•
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION ‘CONTROL BOARD
SEP
222004
PEOPLE OF THE STATE OF ILLINOIS
)
.
STATE OF ILLINOiS
Pollution Control Board
Complainant,
v.
‘
.
)
No.
04-227
ROGERS DEVELOPMENT COMPANY
an Illinois Corporation,
Respondent.
.
•
)
MOTION FOR RELIEF FROM HEARING
REQUIREMENT
Complainant,
PEOPLE OF THE STATE
OF. ILLINOIS by LISA
MADIGAN, Attorney General of the State of Illinois,
pursuant to
Section 31(c) (2)
of the Illinois Eni.~ironmenta1Protection Act
(TtAct~), 415 ‘ILCS 5/31(c)(2)
(2002),
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)
(2002).
In
support of this motion,
Complainant states as follows:
1.
The Complaint in this matter alleges violations of
Section 12(f)
of the ,Act,
415 ILCS 5/12 (f)
(2002)
•
2.
Complainant
is filing this ‘Motion and a Stipulation and
Proposal for Settlement with the, Board.,
3.
,
The parties have reached agreement on all outstanding
issues in this matter.
‘
•
,
4.
,
This agreement is presented to the Board in a
Stipulation and Proposal for Settlement which
is filed
contemporaneously with this Motion.
5.
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)
(2002).
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 ILCS5/31(c)
(1)
(2002)
.
,
.
,
Respectfully submitted,
•
.
,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MPJJIGAN
Attorney General
State of Illinois
BY
_______________
JOEL
J.
STERNSTEIN
•
,
,
Assistant Attorney General
•
Environmental Bureau
•
188 W. Randolph St.,, 20th Floor
•
Chicago, Illinois
60601
•
,
(312)
814-6986
DATE: September 22,
2004
•
,
,
RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS
,)
,
SEP
22
2004
STATE OF ILLINOIS
Complainant,
,
)
.
Pollution Control
Board
v.
‘
)
No. 04-227
ROGERS DEVELOPMENT COMPANY
an Illinois Corporation,
,
)
Respondent.
,
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,,by LISA
MADIGAN, Attorney General of the State of Illinois and
•
Respondent,
ROGERS DEVELOPMENT COMPANY
(“Rogers”),
do hereby
•
‘
submit this Stipulation and Proposal for Settlement
(“Stipulation”)
to the Illinois Pollution Control Board
(“Board”)
•
,
•
for apprpval.
The parties agree that Complainant’s statement of
facts contained herein is agreed to only for the purposes of
settlement.
This Stipulation shall be null and void unless the
Board approves and disposes of this matter on each and every one
of the terms and conditions of the settlement set forth herein.
I.
JURISDICTION
,
The Board has jurisdiction of the subject matter herein and
of the parties consenting hereto pursuant to the Illinois
Environmental Protection Act
(“Act”), .415 ILCS
s/i
et.
seq.
(2002)
.
,
,
1
II.
AUTHORIZATION
The undersigned representatives ‘for each party 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.
III.
STATEMENT
OF FACTS
A.,
PARTIES,
1.’
The subject Complaint was brought by the Attorney
General pursuant, to the terms and provisions of Section 31 of the
Act,
415 ILCS 5/31
(2002)
.
•.
2.
“The. Illinois EPA ~s an administrative agency of the
State of Illinois,
created pursuant to Section 4 of the Act,
415
ILCS 5/4
(2002)
•
‘
3.
At all times relevant to the.Complaint,
Respondent
Rogers was an Illinois, corporation in good standing.
4.
Respondent
is a developer of residential homes
at the
Lyford Oaks subdivision,
located on the west side of Lyford Road
•
‘
north
of’ State Street in Rockf’ord,
Winnebago County,
Illinois
(“Site”)
.
The Site is adjacent to a tributary of Manning Creek.
B.
SOURCE DESCRIPTION
•
.
1.
On December 12,
2001, pursuant to Respondent’s
application,
Illinois EPA granted Respondent coverage under the
2
general National Pollutant Discharge Elimination System
(NPDES)
Storm Water Permit for construction activities
at the Site
effective untilMay
31,
2003.
2.
The Site is approximately five acres
in size.
3.
‘
On April, 9,
2003, Respondent was found to be in
violation of its NPDES permit.
There was’ erosion of loose dirt,
silt,
and poor to nonexistent erosion control measures at the
Site.’
Specifically,
Respondent’ had stored large stockpiles of
soil along the western side of the Site on a downward slope
toward’
a’ “tributary of Manning Creek.
The piles buried silt
fencing that had been installed at that part of,the Site.’
Sheet
erosion and/or grading activities buried other silt fencing on
the western side of the Site.
In addition,
soil had been placed
on or near Trowbridge Road at the Site without any erosion
controls.
‘
C.
VIOLATIONS
‘
‘
This Stipulation is intended to resolve the allegations in
the Complaint
filed in this matter.
The Complaint alleges
violations of the Act as follows:
COUNT
I
Noncompliance with Respondent’s NPDES permit
in
violation of Subsection
12(f) .of the Act,
415 ILCS
12(f)
(2002)
.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon
3
Complainant, and Respondent, and ‘any agent,
director,
officer,
employee or servant of Respondent,
as well as Respondent’s
successors and assigns.
Respondent shall not raise as a defense
to”any enforcement action taken pursuant to this settlement the
failure of’ their agents,
directors,
officers,
servants or
employees to take such action as shall be required to comply with
the provisions of this settlement.
V.
ADMISSION OF VIOLATIONS
Respondent admits the’allegations
in the Complaint.
VI.
FTJTURE
PLANS
OF
COMPLIANCE
Respondent
shall comply withthe Act,
the Board’s
regulations,
and the terms of its NPDES stormwater permit for
construction Site activities and its stormwater pollution
prevention plan.
‘
Respondent shall maintain adequate stormwater
control
measures’ at the’Site to prevent erosion at the Site until
,construction at the Site
is complete and the Site is adequately
stabilized.
‘
VII.
‘
.
IMPACT
ON
THE
PUBLIC
RESULTING
FROM ALLEGED NON-COMPLIANCE
,Subsection 33(c)
of
the, Act, 415 ILCS 5/33(c)
(2002),
•‘provides as follows:
‘
‘
‘
•
In making its orders and determinations,
the Board shall
take into consideration all the facts and circumstances
4
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 state as follows:
1.
Th,e parties. agree that the impact to the public as a
result of the allegations against Respondent in the Complaint was
that Re,spondent violated the terms of its NPDES permit.
2.
The parties agree that the Site is of social and
economic value.
3.’
The parties agree that the Site is suitable to the area
where
it
is located.
,
4.
The parties agree that compliance with the, requirements
of the Ac~tand the Respondent’s NPDES permit
is both technically
practicable ,and economically reasonable.
5.
The’parties agree that Respondent subsequently complied
5
with the, Act and its NPDES permit.
VIII.
CONSIDERATION OF SUBSECTION 42(h)
FACTORS
Subsection 42(h)
of the Act, 415 ILCS 5/42(h)
2002,
provides
as follows:
‘
‘
‘
In determining the ‘appropriate civil penalty to be imposed’
under subdivisions
(a);(b)
(1),
(b)
(2),
(b)
(3), or
(b)
(5)
of this Section,
the Board is authorized to consider any
‘matters or record in mitigation or aggravation
o,f 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 violator 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 violator because
of delay in compliance with requirements;
4.
the amount
of’ monetary penalty which will serve to
deter further violations by the violator and to
otherwise’aid’in enhancing voluntary compliance with
this act by the violator and other persons similarly
‘subject to the Act;
and’
5.
the number, proximity in time,
and gravity of
previously adjudicated violations of this Act by the
‘violator.
6.
whether the respondent voluntarily self-disclosed,
.in
accordance with subsection
(1)
of ‘this Section,
the
non-compliance to the Agency; and
7.
whether the respondent has agreed to undertake a
lisupplemental 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 determining the appropriate civil penalty to be imposed
6,
under subsection
(a)
or paragraph
(1),
(2),
(3), or
(5)
of
subsection
(b)
of ‘this Section, the Board shall
ensure,
in
all cases,
that the penalty is at least
as great as the
economic benefits,
if any,
accrued by the respondent as a
result of the violation,
unless the Board finds that
imposition of such penalty would result in an arbitrary or
unreasonable financial hardship.
However,
such civil
penalty may be off-set in whole or in part pursuant to a
supplemental environmental project agreed to by the
complainant and the respondent.
In response to these factors the parties state as follows:
1.
The parties agree that the gravityof the alleged
violations is significant
in that Respondent failed to comply
with the Act and its NPDES permit.
The ‘parties agree that the
duration is equally significant,
as the alleged violations began
sometime on or prior to April
9,
2003 and continued until
Respondent corrected the violations in May 2004.
2.
The parties agree that Respondent’ did not initially
exerci’se due, diligence in complying with the Act and its NPDES
permit.
However,
Respondent subsequently came into compliance
with its NPDES permit.
.
3.
The parties agree that Respondent derived economic
benefits by not using proper methods ‘of siltation and erosion
control
for the approximately five-acre Site.
4.
The parties agre’e’that
a five-thousand dollar
($5,000.00)
civil’penalty is adequate to deter Respondent from
future violations.
‘
‘
5.
Complainant
is unaware of any previously adjudicated
violations of the Illinois Environmental Protection Act’against
7
Respondent.
6.
Respondent did not self-disclose the alleged violations
to the Illinois EPA.
,
.
7.
Respondent
is not conducting a supplemental
environmental proj ect.
,
8.
The penalty is
at. least as great
as’ the economic
benefit achieved by Respondent as a result of the violations.
The penalty will not present an economic hardship
‘to Respondent.
Ix
TERMS OF SETTLEMENT
,
‘
1
Respondent shall pay a civil penalty of five-thousand
dollars
($5,000.00)
within thirty
(30)
days of the date,of entry
of this Stipulation and Proposal for Settlement.
Payment of
five-thousand dollars
($5,000.00)
shall be ‘madé’by certified
check or money order payable to the “Illinois Environmental
.Protection Agency” and designated to the Environmental Protection
Trust Fund.
The certified check or money ‘order shall include,
Respondent’s federal employer identification numbers and be sent
by first class mail
to:
,
.
,
,
,
.
Illinois Environmental Protection Agency
,
Fiscal Services Section
.,‘
.
.
.
1021 North Grand Avenue East
..
..
P.O. Box 1927~’
,
‘
Springfield, Illinois
62794-9,276
‘
,
,
A copy of the check shall be sent to:
‘
.
‘.
.‘
8
Joel Sternstein
.
Assistant Attorney General
“
Environmental Bureau
188 West Randolph Street 20th Floor
Chicago,
Illinois 60601,
On the checks and/or money orders, Respondent shall include
the case name and case number.
2.
For the purposes of collection,
inquiries can be
addressed to Respondent Rogers’
attorney’at:
Patrick W. Hayes
‘
Guyer & Enichen
,.
2601 Reid Farm Road,
Suite B
Rockford,
IL 61114
3.
Pursuant to Subsection 42’ (g)
of the Act,
415 ILCS 5/42
(g)
(2002),
interest shall accrue on any amount ‘not paid within
the time prescribed herein at the maximum rate allowable under
Subsection 1003 ,(a)
of’
the’. Illinois Income Tax Act,
35 ILCS
5/1003
,
(a)
(2002)
.
‘
a.
Interest
on’ unpaid
amounts shall begin to accrue
from
the
date
the
penalty
payment
is
due
and
continue to accrue
to the date payment
is received.
b.
‘
Where partial payment
is made on a payment amount
that is due, such partial payment shall be first applied to any
interest on unpaid amOunts then ‘owing..
c.
All interest on amounts owed Complainant shall be
paid by certified checks’ ‘payable to the “Illinois Environmental
Protection Agency”
for deposit in the Environmental Protection
Trust Fund and delivered in the same manner as des’cribed in
9
Subsection IX.l herein.
d.
In the event that Respondent fails to make all or
part of the payment set forth in Subsection IX.l,
Respondent
shall be in default and the unpaid balance owed, plus any accrued
interest,
shall become due and owing Complainant’ immediately.
4.
Respondent shall in the future operate in compliance
with the Act and its NPDES permit.
.
‘
5.
Respondent’ shall cease and desist from further
violations of the ‘Act and its NPDES permit,
including,
,but not
limited to, the Subsectián of the Act that was the subject matter
of the Complaint as outlined in Subsection III.C of
thi’s
Stipulation.
x.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
‘
This Stipulation and Proposal for Settlement inno way
affects Respondent’s responsibility to comply with any federal,
state or local’ laws and regulations,
including but notlimited to
the Act, 415 ILCS 5/1
e’t
seq.
(2002,)
,
and the Board Regulations,
35
Ill. Adm. Code Subtitles A through H.
‘
XI.
,
,
‘
FUTURE
USE
Notwithstanding any other language in this Stipulation and
Proposal for Settlement
to the contrary, this Stipiilation’and
Proposal for Settlement may be used against Respondent in any
10
‘
subsequent enforcement action or permit, proceeding as evidence of
a past adjudication of violation of the Act and its NPDES permit.
XII.
RIGHT OF
ENTRY
In
addition
to
any
other
authority,
the
Illinois
EPA,
its
employees and representatives,
and the Attorney General, her
agents and representatives,
shall have the right of entry into
and upon the Site at all reasonable times for the purposes of
carrying out environmental inspections.’
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.
‘
‘
‘
‘
XIII.
RELEASE FROM LIABILITY
In
cons±deration
of
Respondent’s
payment
of
the
$5,000.00
penalty, Complaihant releases, waives and discharges Respondent
from any further liability or penalties for violations of the Act
and its NPDES permit 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 the Complaint
in this matter.
Complainant reserves,
and this Stipulation is
without prejudice to,
all rights of the State of Illinois against
Respondent ,with respectto all other matters,
including but not
11
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 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
(2002), or entity other’ than
Respondent.
‘
,
,
WHEREFORE,
Complainant and’Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal for
‘
Settlement as written.
,
‘
‘
‘12
AGREED:
FOR COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
LISA
M~JDIGAN
‘
Attorney General, State of Illinois
MATTHEWJ.
DtTh~N,
‘Chief
Enviromnental Enforcement\Asbestos
Litigation Division
‘
‘
‘
~
~
RO~5IkC9EAU1(~h~e~
‘
‘
Envirorimental Burea~-~,
Assistant Attorney Gen~i
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
FOR RESPOND NT:
By:
~~~L
~
W~lliazn
~.
Ro~ers.)
Presiden~_—-
Rogers Development Company
G:\Environmental Enforcement’JOEL\Case Documents\Rogers\settlement.draftl .wpd
Date:
____________
Date:
.ef Legal Counsel
12
CERTIFICATE OF SERVICE
I, JOEL J.
STERNSTEIN, ‘an Assistant Attorney General,
certify that on the 22’~,day of September,
2004,
I caused to be
served by First Class Mail the foregoing Stipulation and Proposal
for Settlement,
Request
£or Relief from the Hearing Requirement,
and Notice of Filing 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.
‘
,
‘
G: \EilVirOflmeXltal Enforcement\JOEL\Case Documents\Rogers\stip-notice-relief-hearing .wpd
