fFiT~)iV?~nan

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BEFORE

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CONTROL BOARD

Mi~Y 2

9

2003

PEOPLE OF THE STATE 0

L

~O’~S~’JV

\JL~UL5

STATE

OF ILLINOIS

Po//utj0~Control Board

Complainant,

vs.

No.

PCB 03-147

WESTFIELD HOMES OF ILLINOIS,

)

(Enforcement

-

Water)

an Illinois corporation,

Respondent.

TO:

Mr. Michael Ficaro

Bradley Halloran

Attorney for Respondent

Hearing Officer

Ungaretti

& Harris

100 West Randolph Street

3500 Three First National P1.

11th

Floor

Chicago,

Il.

60602-4283

Chicago,

IL.

60601

NOTICE OF FILING

PLEASE TAKE NOTICE that we have today,

May

29,

2003,

filed with

the Office of

the Clerk of

the Illinois Pollution Control Board an

original and nine copies of

a Stipulation and Proposal for Settlement

and a Motion to Request Relief from Hearing Requirement,

copies

of

which are attached herewith and served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

of the

State of Illinois

BY:

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PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188

W.

Randolph St.,

~

Flr.

Chicago,

IL 60601

(312)

814-1511

THIS FILING IS SUBMITTED ON RECYCLED PAPER

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RECEiVED

II

III

Ill

11

CLERK’S

OFFICE

BEFORE T E

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CONTROL BOARD

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hillY!

II

M~Y2 92003

PEOPLE OF THE STATE OF

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ILL

LI LI

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STATE OF ILLINOIS

Complainant,

)

Pollution

Control Board

vs.

No.

PCB 03-147

WESTFIELD HOMES OF ILLINOIS,

)

(Enforcement

-

Water)

an Illinois corporation,

Respondent.

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.

In

support thereof,

the Complainant

states as follows:

1.

On March

13,

2003,

a Complaint was filed with the Pollution

Control Board

(“Board”)

in this matter.

On May 29,

2003,

a

Stipulation and Proposal

for Settlement was filed with the Board.

2.

Section

31(c) (2)

of the Illinois Environmental Protection

Act

(“Act”),

415

ILCS

5/31(c) (2),

effective June

26,

2002,

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.

Section

31(c)

(2)

provides:

Notwithstanding the provisions

of subdivision

(1)

of this

subsection

(c),

whenever

a 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

1

---

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)

3.

No hearing is currently scheduled in the instant case.

4.

The Complainant requests

the relief conferred by Section

31(c)

(2)

of the Act.

WHEREFORE,

the Complainant,

PEOPLE OF THE STATE OF ILLINOIS, by

LISA MADIGAN,

Attorney General of the State

of Illinois,

requests

relief from the requirement of

a hearing pursuant to 415 ILCS

5/31(c) (2),

effective June

26,

2002.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

of the

State

of Illinois

By:___________________

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188

W.

Randolph St.,

20th

Fl.

Chicago,

Illinois

60601

(312)

814-1511

2

---

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A

CLERK’soFpIc~

BEFORE THE

~

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i~1

NTROL BOARD

M/~Y2 9 2003

PEOPLE

OF

THE

STATE

OF

I

,

,.I U

STATE

OF ILLINOIS

Complainant,

)

Pollution

Control Board

-vs-

)

No.

PCB

Q3.~-/L/’7

(Enforcement)

WESTFIELD HOMES OF ILLINOIS

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,

at the

request of the Illinois. Environmental Protection Agency,

and

Respondent, WESTFIELD HOMES OF ILLINOIS, an Illinois corporation,

do hereby agree to this Stipulation and Proposal for Settlement

(“Stipulation”)

.

The parties agree that the statement of facts

contained herein represents a fair summary of the evidence and

testimony which would be introduced by the parties

if

a full

hearing were held.

The parties further stipulate that this

statement of facts

is made and agreed upon for purposes of

settlement only and that neither the fact that a party has

entered into this Stipulation, nor any of the facts stipulated

herein,

shall be introduced into evidence in this or any other

proceeding except to enforce the terms of this agreement.

Notwithstanding the previous sentence,

this Stipulation and

proposal for Settlement and any Illinois Pollution Control Board

(T?Boardfl) order accepting same may be used in any future

-1-

~

~

.

..

.~

---

enforcement action as evidence of a past adjudication of

violation of the Illinois Environmental Protection Act

(~Act”)

for purposes of Sections

39(i)

and 42(h)

of the Act,

415 ILCS

5/39(1) and 5/42(h) (2002).

I.

JURISDICTION

The Board has jurisdiction of the subject matter herein and

of the parties consenting hereto pursuant to the Act, 415 ILCS

5/1

et

seq.

(2002)

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

Proposal for Settlement and to legally 1~indthem to it.

III.

APPLICABILITY

This Stipulation and Proposal for Settlement shall apply to

and be binding upon the Complainant and Respondent, and each of

them,

and on any officer, director, agent, 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 its officers,

directors,

agents,

servants or employees to take such action as

shall be required to comply with the provisions of this

-2-

---

settlement.

Iv.

STATEMENT OF FACTS

A.

Parties

1.

The

Attorney

General of the State of Illinois brought

this

action

on

her

own

motion,

as

well

as

at

the

request

of

the

Illinois Environmental Protection Agency (‘~IllinoisEPA”),

pursuant to the statutory authority vested in her under Section

31 of the Act,

415 ILCS 5/31

(2002)

2.

Illinois EPA is an agency of the State of Illinois

created pursuant to Section

4 of the Act,

415 ILCS 5/4

(2002),

and is charged,

inter alia,

with the duty of enforcing the Act.

3.

Respondent,

WESTFIELD

HOMES

OF

ILLINOIS,

(“WESTFIELD”),

is

an

Illinois

corporation,

duly

authorized

to

transact

business

in

Illinois.

B.

Site Description

At all times relevant to the Complaint,

WESTFIELD owned

property commonly known as Tiffany Farms Phase II Unit

3 and Unit

4,

in Antioch, Lake County,

Illinois

(“Site”)

.

At the Site,

Respondent was developing a residential community as part of its

business as a home sales and building company.

It no longer owns

the Site.

C.

Noncompliance

Complainant has alleged the following violations of the Act

and Illinois Pollution Control Board

(“Board”) regulations

-3-

---

against the Respondent:

COUNT

I:

WATER POLLUTION, violation of 41,5 ILCS 5/12(a) (2002);

COUNT

II:

CREATION

OF

WATER

POLLUTION

HAZARD,

violation

of

415

ILCS 5/12(d)

(2002);

COUNT III:

PERMIT VIOLATIONS, violations of 415 ILCS 5/12(f)

(200.2)

D.

Response to allegations

Respondent neither admits nor denies the alleged violations.

v.

IMPACT ON THE PUBLIC RESULTING FROM NONCOMPLIANCE

Section 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

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.

-4-

---

ANALYSIS:

The

parties

mutually

state

as

follows:

1.

Character and Degree of Injury:

The

impact

to

the

public

from

the

alleged

violations

of

the

Act

was

the

actual

discharge

and

the

threat

of

discharge

of

silt-

laden storm waters into Illinois waters.

2.

Social and Economic Benefit:

The

parties

agree

that

operation

of

Respondent’s

business

is

of social and economic benefit, provided it operates in

conformance with the requirements of the Act and pertinent Board

waste disposal regulations.

3.

Suitability to the Area:

Operation of Respondent’s business at the Site was suitable

to the area,

as long as

it acted in conformance with the Act and

Illinois Pollution Control Board regulations.

4.

Technical Practicability:

Compliance with its NPDES permit and in the handling of

soils

and

construction waste at the Site was both technically

practicable and economically reasonable.

5.

Subsequent Compliance:

Respondent

is no longer operates or owns the Site.

VI.

CONSIDERATION

OF

SECTION

42(h)

FACTORS

Section 42(h)

of the Act,

415 ILCS 5/42(h) (2002),

provides

as follows:

-5-

---

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

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.

‘ANALYSIS:

1.

Duration and Gravity of the Violation:

The violations that are the subject of the Complaint are of

relatively short duration and resulted in no known injury to the

public.

The violations date back to May of 2001 and continued

through October

31st

of

2001.

2.

Diligence of Respondent:

The Respondent has removed soils and dirt piles,

the outlet

to the Lake

is open,

the stand pipe is functional, and

it

is no

longer

operating

at

the

Site.

3.

Economic Benefit of Noncompliance:

-6-

---

The Respondent received an economic benefit from the alleged

noncompliance, however the exact value of the economic benefit is

difficult to quantify.

4.

Deterrence:

A

penalty

of

Fifteen

Thousand

Dollars

($15,000.00)

against

the Respondent will deter future noncompliance by the Respondent

and others.

5.

Compliance History:

The Respondent has no previously adjudicated violations of

the Act and Board Regulations.

VII.

TERMS OF SETTLEMENT

1.

The

Respondent

neither

admits

nor

denies

the

violations

as

alleged

in

the

Complaint.

2.

The

Respondents

shall

pay

a

penalty

of

Fifteen

Thousand

Dollars

($15,000.00)

within’

30

days

of

the

date

the

Board

issues

an

Order

accepting

this

Stipulation.

3.

All

Payments

shall

be

made

by

certified

check

or

money

order,

payable

to

the

Illinois

EPA,

designated

for

deposit

into

the Environmental Protection Trust Fund,

and shall be sent by

first

class

mail

to:

Illinois Environmental Protection Agency

Fiscal Services

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

IL

62794-9276

Copies of the certified checks or money orders, and all related

-7-

---

correspondence,

shall be sent by first class mail to:

Paula Becker Wheeler

Assistant Attorney General

Environmental Bureau

188 West Randolph,

Suite 2001

Chicago,

Illinois 60601

4.

Respondent’s FEIN number must be on. the certified check

or money order.

For issues relating to the payment of the

penalty,

the Respondent may be reached at the following address:

Westfield Homes ~f.Illinois

do Michael Ficaro

Attorney for Respondent

Ungaretti and Harris

3500 Three First’ National Plaza

Chicago,

Illinois

‘

60602—4283

For purposes of payment and collection,

the Respondent’s

attorney may be reached at the following address:

Mr. Michael Ficaro

Ungaretti

and

Harris

3500 Three First National Plaza

Chicago,

Illinois

60602-4283

5.

Pursuant to Section 42(g)

of the Act,

415 ILCS 5/42(g)

(2002),

interest shall accrue on any penalty amount owed by the

Respondent not paid within the time prescribed herein,

at the

maximum rate allowable under Section 1003(a)

of the Illinois

Income Tax Act,

35 ILCS 5/1003 (a) (2002)

.

6.

Interest on unpaid penalties shall begin to accrue from

the date the penalty is due and continue to accrue to the date

payment is received by the Illinois

EPA.

7.

Where partial payment

is made on any penalty amount

-8-

---

that is due,

such partial payment shall be first applied to any

interest on unpaid penalties tlaen owing.

8.

All interest on penalties owed the Complainant

shall be

paid by certified check or money order payable to the Illinois

EPA for deposit in the Environmental Protection Trust Fund at the

above-indicated address.

The name,

case number,

and the

Respondent’s Social Security number shall appear on the face of

the certified check or money order.

A copy of the certified

check or money order and the transmittal lettershall be sent to:

Paula Becker Wheeler

Assistant Attorney General

(or other designee)

Environmental Bureau

188 W. Randolph St.,

Suite 2001

Chicago,

Illinois 60601

9.

In the event of default,

the Complainant shall be

entitled to reasonable costs of collection,

including, reasonable

attorney’s fees.

CEASE AND DESIST

Respondent shall cease and desist from future violations of

the Act and Board regulations,

including but not limited to,

those sections of the Act and Board regulations that were the

subject matter of the complaint as outlined in Section IV.C. of

this Stipulation and Proposal for Settlement.

Ix.

-

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation and Proposal for Settlement

in no way

-9-

---

affects the Respondent’s responsibility to comply with any

federal,

state or local regulations,

including but not limited to

the Act and Board regulations.

RELEASE FROM LIABILITY

In consideration of Respondent’s payment of Fifteen Thousand

Dollars

($15,000.00), and Respondent’s commitment to refrain from

future violations of the Act and Board, regulations,

Complainant

releases, waives and discharges the Respondent from any further

liability or penalties for violations of the Act and regulations

which were the subject matter of the Complaint herein, upon the

payment’ of all monies owed.

However, nothing in this Stipulation

and Proposal ‘for Settlement shall be construed as a waiver by

Complainant of the right to redress future violations at other

sites or heretofore undiscovered violations,

or obtain penalties

with respect thereto.

Respondent no longer owns or operates ‘the

Site.

WHEREFORE,

Complainant and Respondent request that the Board

adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

-10-

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AGREED:

FOR THE COMPLAINANT:

LISA

MADIGAN

Attorney General of

the State of Illinois

Matthew J.

Dunn.,

Chief

Environmental Enforcement

/

Asbes

Litigation Dvision

By:

RO

EMAR

CAZEAU

Ch

Envi

me

al Burea

Assistant Attorney General

Dated:

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FOR RESPONDENT:

WESTFIELD HOMES OF ILLINOIS

BY:

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Title:

FEIN:

Dated:

ILLINOIS ENVIRONMENTAL PROTECTION

AG:

By:

E.

SVOBODA

ef Legal Counsel

Dated:

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-11-

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CERTIFICATE OF SERVICE

I,

PAULA BECKER WHEELER,

an Assistant Attorney General

in this

case,

do certify that

I caused to be served this

~

day of May,

2003,

the foregoing Stipulation and Proposal for Settlement, Motion

to Request Relief From Hearing Requirement and Notice of Filing

upon the persons listed on said Notice by depositing same in an

envelope,

first class postage prepaid, with the United States

Postal Service at 188 West Randolph Street,

Chicago,

Illinois,

at

or before the hour of 5:00 p.m.

PAULA BECKE~WHEELER