BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,)
Complainant,)
VS.
)
No. PCB 04-192
)
(Enforcement
-
Land
&
Water)
SMITHFIELD PROPERTIES, L.L.C)
an Illinois limited liability company,)
WOOTEN CONSTRUCTION, LTD., an)
Illinois corporation, and CHICAGO)
SUJN-TIMES, INC., a Delaware corporation,
)
Respondents.
)
VIA ELECTRONIC FILING
NOTICE OF FILING
TO:
Linda Loye
Dorothy Gunn, Clerk
Associate Corporate Counsel
Illinois Pollution Control Board
Chicago Sun-Times
Suite 11-500
350 North Orleans, I
Oth Fl.
James R. Thompson Center
Chicago, Illinois
60654
1
00 W. Randolph Street
Chicago, IL 60601
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board an original and nine copies of the Stipulation and Proposal for
Settlement, an Agreed Motion for Relief from the Hearing Requirement, Notice of Filing and a
Certificate of Service, a copy of which is attached herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
A
Mzzt&VS
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, IL 60601
(312) 814-3816
DATE:
October 26, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
Complainant,)
vs.
)
No. PCB 04-192
)
(Enforcement
-
Land & Water)
SMITHFIELD PROPERTIES, L.L.C)
an Illinois limited liability company,)
WOOTEN CONSTRUCTION, LTD., an)
Illinois corporation, and CHICAGO)
SUN-TIMES, INC., a Delaware corporation,
)
Respondents.)
'AGREED MOTION TO REOUEST RELIEF
FROM THE HEARING REQUIREMENT
In support of this Motion, the parties state as follows:
I .
Today, the People of the State of Illinois, filed a Stipulation and Proposal for
Settlement, with the Illinois Pollution Control Board.
2.
Section 3 1(c)(2) of the Illinois Environmental Protection Act, ("Act"),
415
I1LCS
5/3 l (c)(2)(2004) 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)....
3.
Complainant and Respondent agree that a formal hearing is not necessary to
conclude this matter and wish to avail themselves of Section 3 1(c)(2) of the Act, 415 ILCS
5/31 (c)(2)(2004).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
WHEREFORE, Complainant and Respondent request relief from the hearing requirement
pursuant to Section 3 1
(c)(2) of the Act.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
BY:
_________
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, Illinois 60601
(312) 814-3816
DATE:
October 26, 2005
G:\E.,ioa,
nta Enoccnt~
BEREICT-AB\Snhficl
Propoic
Agreed
M., to Req
Relif tQ265.05
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.)
PCB 04-192
SMITHFIELD PROPERTIES, L.L.C.)
(Enforcement- Land
&
an Illinois limited liability
)
Water)
company, WOOTEN CONSTRUCTION,
LTD., an Illinois corporation,
and CHICAGO SUN-TIMES, INC.,
a Delaware corporation,
Respondents.
STIPULATION
AND
PROPOSAL FOR SETTLEMENT
WITH
CHICAGO
SUNM-TIMES.
INC..
ONLY
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 CHICAGO
SUN-TIMES, INC. ("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.
The parties agree that the statement of facts
contained herein represent a fair summary of the evidence and
testimony which would be introduced by the parties if a 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
introduced into evidence in any other proceeding regarding the
claims asserted in the Complaint except as otherwise provided
herein.
if the Board approves and enters this Stipulation, both
parties agree to be bound by the Stipulation and Board order and
not to~ contest their validity in any subsequent proceeding to
implement or enforce their terms.
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 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 to
legally bind them to it.
III.
STATEMENT OF FACTS
A.
PartieB
1.
On May 5, 2004, 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 ITJCS
5/31(2002), against the Respondent.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
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
(2002).
3.
At all times relevant to the Complaint, Respondent was
and is a Delaware corporation that is authorized to transact
business in the State of Illinois.
B.
Site Description
1.
From on or before 1986 until 1998, Respondent owned and
operated a fleet maintenance facility located at 222 South
Racine, Chicago, Illinois, Cook County, Illinois ("Site").
2.
The Site which used to be an industrial area until
1998, has now been developed into 42 town home units.
3.
For a number of years beginning on or before 1986,
Respondent used the Site as a home for its Daily News fleet
maintenance garage and stored several petroleum underground
storage tanks ("USTs") at the Site.
4.
On December 3, 1998, Respondent entered into an
agreement to sell the Site to Kenard Investments, Inc. ("Kenard")
and on October 27, 1999, Kenard assigned its interest to
Smithfield Properties, L.L.C., an Illinois limited liability
company, the current owner of the Site.
-3-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count IX:
Causing or tending to cause water pollution, in
violation of Section 12(a) of the Act, 415 ILCS
5/12 (a) (2002)
Count X:
Creating a water pollution hazard, in violation
of Section 12(d) of the Act, 415 ILCS 5/12(d)
(2002);
Count XI:
Failure to submit a 45-day report, in violation
of Section 57.6(a) of the Act, 415 ILCS 5/57.6(a)
(2002), and 35 Ill. Adm. Code 732.202(e).
D.
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
litigation.
By entering into this Stipulation and complying with
its terms, the Respondent does not affirmatively admit the
allegations of violation within the Complaint and referenced
within Section III.C herein, and this Stipulation shall not be
interpreted as including such admission.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent, and any officer, director, agent,
or employee of such parties; as well as any successors or assigns
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
of the parties. Neither party shall 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 the provisions of this Stipulation.
V. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
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, 35 Ill. Adm. Code, Subtitles A through H.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33 Cc) 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;
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
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 the
following:
1.
During the period Respondent owned and operated the
Site, there were no reported incidents that affected the
protection of human health, general welfare and physical property
of people living in the vicinity of the Site.
2.
There is social and economic benefit to the facility.
3.
operation of the facility was suitable for the area in
which it occurred.
4.
Complying with the reporting requirements of the Act
and Board regulations was both technically practicable and
economically reasonable.
S.
Respondent sold the Site in 1998. The current owner is
developing plans to come into compliance.
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section
42(h)
of the Act, 415 ILCS 5/42(h) (2002)
,
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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
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, Complainant states as follows:
1.
From sometime prior to December 3, 1998, the date
Respondent sold the Site to Kenard, to the date of filing of the
-7-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
Complaint, groundwater at the Site
remains
contaminated with
diesel and/or gasoline fuel released from one or more underground
storage tanks or from surface spill or petroleum products during
Respondent's long usage of the Site as a garage and refueling
station for its fleet of vehicles.
However, Respondent states that groundwater at the Site
remains contaminated with diesel and/or gasoline fuel which was
caused to be released from one or more underground storage tanks
or from surface spill or petroleum products during development of
the property into the town home units.
2.
When the soil contamination at the Site was discovered
in 2001, Sun-Times was no longer the owner of the property.
Before it sold the Site, Sun-Times did not perform any study to
determine groundwater and sold the property as, is.
3.
Any economic benefits that Sun-Times may have accrued
because of delay in Site investigation are believed to be less
than the $40,000.00 penalty agreed herein.
Respondent, on the other hand, states that it has not
received any economic benefits in this matter and has entered
into this stipulation solely for the purpose of settling and
compromising disputed claims without having to incur the expenses
of contested litigation.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of Forty Thousand Dollars
($40,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant'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.
VIII. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Forty Thousand Dollars ($40,000.00) within thirty (30) days from
the date the Board adopts and accepts this Stipulation.
The
Respondent stipulates that payment has been tendered to
Respondent's attorney of record in this matter in a form
acceptable to that attorney. Further, Respondent stipulates that
said attorney has been directed to make the penalty payment on
behalf of Respondent, within thirty (30) days from the date the
Board adopts and accepts this Stipulation, in a manner prescribed
below. The penalty described in this Stipulation shall be paid
by certified check, money order or electronic funds transfer
-9-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
payable to the Illinois EPA, designated to the Illinois
Environmental Protection Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Bokt 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer
Identification Number (FEIN),36-3447749, shall appear on the
check. A copy of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be
sent to:
Zemeheret Bereket -Ab
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2
0
th
Floor
Chicago, Illinois 60601
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g)
(2002), interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate allowable under
Section 1003(a) of the Illinois Income Tax Act, 35 TLCS 5/1003
(2002)
.
Interest on any unpaid payment shall begin to accrue
from the date the payment is due and continue to accrue until the
date payment is received. when partial payment(s) are made, such
partial payment shall be first applied to any interest on unpaid
payment then due and owing. All interest on payment owed shall
be pai~d by certified check, money order or electronic funds
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
transfer, payable to the Illinois EPA, designated to the Illinois
Environmental Protection Trust Fund and delivered to the address
and in the manner described above.
3.
For purposes of payment and collection, Respondent may
be reached at the following address:
Linda Loye
Associate Corporate Counsel
Chicago Sun-Times, Inc.
350 N. Orleans,
j
0
th
Floor
Chicago, Illinois 60654
4.
In the event of default of this Section VIII.A, the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney's fees.
B.
Future Use
Notwithstanding any other language in this Stipulation to
the contrary, and in consideration of the mutual promises and
conditions contained in this Stipulation, including the Release
from Liability contained in Section VIII.F, below, the Respondent
hereby agrees that 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 promulgated thereunder for all
violations alleged in the Complaint in this matter, for purposes
of Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
5/39(a) and(i) and/or 5/42(h) (2002).
Further, Respondent agrees
to waive any rights to contest, in any subsequent enforcement
action or permit proceeding, any allegations that these alleged
violations were adjudicated.
C.
Cease and Desist
The Respondent shall cease and desist from future violations
of the Act and Board Regulations that were the subject matter of
the Complaint as outlined in Section III.C ("Allegations of Non-
Compliance") of this Stipulation.
D.
Release from Liability
In consideration of the Respondent's payment of the Forty
Thousand Dollars ($40,000.00) penalty and any specified costs and
accrued interest, and to Cease and Desist as contained in Section
VTTI.C and upon the Pollution Control Board's acceptance and
approval of the terms of this Stipulation and Proposal for
Settlement, the Complainant releases, waives and discharges the
Respondent from any further liability or penalties for 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 May 5, 2004.
The Complainant
reserves, and this Stipulation is without prejudice to, all
rights of the State of Illinois against the Respondent with
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
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
3.315 of the Act, 415 ILCS 5/3.315, or entity other than the
Respondent.
E.
Enforcement of Board Order
1.
Upon the entry of the Board's order approving and
accepting this Stipulation and Proposal for Settlement, that
Order is a binding and enforceable order of the Illinois
Pollution Control Board and may be enforced as such through any
and all available means.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
2.
Respondent agrees that notice of any subsequent
proceeding to enforce the Board order approving and accepting
this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process.
3.
The parties agree that, if the Board does not approve
and accept this Stipulation and Proposal for Settlement, then
neither party is bound by the terms herein.
4.
It is the intent of the Complainant and Respondent that
the-provisions of this Stipulation and Proposal for Settlement
and any Board Order accepting and approving such shall be
severable, and should any provision be declared by a court of
competent jurisdiction to be inconsistent with state or federal
law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect.
[THE
REST
OF
THIS
PAGE
IS
LEFT
INTENTIONALLY
BLANK]
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
WHEREFORE, Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal for
Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADJIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
As so Litigation
siosn
Assistant Attorney General
ILLINOIS.NVIRONMENTAL PROTECTION
AGENC
BY:
_
_
_
_
_
_
_
_
_
_
_
_
DATE:
___
__
___
__k_
R6BERT'.MS*
Chief Legal Counsel
CHICAGO SUN-TIMES, INC.,
a Delaware corporation,
BYz
-DATE:
l/go
Name:
E.S7
A
4A.
01
joJod-A
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
CERTIFICATE OF SERVICE
I,
ZEMEHERET BEREKET-AB, an Assistant Attorney General, do certify that I caused
to be served on this
2 6t1h
day of October 2005, the foregoing Notice of Filing, a Stipulation and
Proposal for Settlement, and an Agreed Motion for Relief from the Hearing Requirement, upon
the persons listed on said Notice by placing same in an envelope bearing sufficient postage with
the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois.
ZEMEHERET BEREKET-AB
G:\E.xvrnnrtal Enforcnrt~ZBEREKT-AB\SthfilddPropci.
NOF&Ccnificat
LO-26-O5.wpd
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, OCTOBER 26, 2005
