RECEIVED
CLERK'S OFFICE
MAY 1 6 2008
Lisa Madigan
Pollution
STATE OF.
Control
ILLINOIS
Board
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
May 14, 2008
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
Re:?
People v. Cochran and Wilken, Inc.
PCB No. 07-32
Dear Clerk:
Enclosed for filing please find the original and ten copies of a Notice of Filing, Motion for
Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard to the
above-captioned matter. Please file the originals and return file-stamped copies to me in the
enclosed, self-addressed envelope.
Thank you for your cooperation and consideration.
Very truly yours,
Michael D. Mankowski
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
MDM/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (217) 785-2771 • Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • '17Y: (312) 814-3374 • Fax: (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation [vision
BY:
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PCB No. 07-32
(Enforcement - Water)
COCHRAN AND WILKEN, INC.,
an Illinois corporation,
Respondent.
NOTICE OF FILING
To:?
Edward R. Gower
Hinshaw & Culbertson LLP
400 South Ninth Street, Suite 200
Springfield, IL 62701
IFIECEVS0
CLEPIKS OFFICE
MAI
g
6 2008
STATE. OF ILLINOIS
tion Control
Board
Pollu
PLEASE TAKE NOTICE that on this date I mailed for filing 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.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MICHAEL D. MANKOWSKI
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: May 14, 2008
CERTIFICATE OF SERVICE
RECEIVED
C
LERK'S
OFFICE
BRAY 1 6 2008
SoT4Evoza4014_
I hereby certify that I did on May 14, 2008, send by First Class
?
Md.
fully prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT:
To:?
Edward R. Gower
Hinshaw & Culbertson LLP
400 South Ninth Street, Suite 200
Springfield, IL 62701
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s):
To:?
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to:
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
MICHAEL D. MANKOWSKI
Assistant Attorney General
This filing is submitted on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
v.
?
)?
PCB No. 07-32
)?
(Enforcement - Water)
COCHRAN AND WILKEN, INC.
an Illinois corporation,
RECEIVED
Respondent.?
CLERK'S OFFICE
MAY 1 6 2008
MOTION FOR RELIEF FROM HEARING
Rem R&
STATE OF ILLINOIS
Board
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) (2006), 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, 415 ILCS 5/31(c)(1) (2006). In support of
this motion, Complainant states as follows:
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, 415 ILCS 5/31(c)(2) (2006).
1
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) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
L .
igation ivision
BY: ?
MICHAEL D. MANKOWSKI
4(h
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: May 14, 2008
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
COCHRAN AND WILKEN, INC.,
an Illinois corporation,
))
)
Respondent.
)
PCB No.
07-32
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Cotrol Bo ard
STIPULATION AND PROPOSAL FORIETILEMENT
E#1
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 COCHRAN AND WILKEN, 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 represents 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 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, Respondent agrees 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.
L 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.
(2006).
IL 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.
On November 1, 2006, 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 ILCS 5/31 (2006),
against the Respondent.
The Illinois EPA is an administrative agency of the 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 Illinois
corporation in good standing.
2
B.?
Site Description
1.
At all times relevant to this Complaint, Cochran and Wilken, Inc. was the
consulting engineer for the Lake Arlann sediment removal project.
2.
Lake Arlann is a natural lake previously called Lake Meyers, located in Pekin,
Illinois.
3.
The Lake Arlann sediment removal project utilized a hydraulic dredging process
to remove approximately 330,000 cubic yards of accumulated sedimentation and siltation from
Lake Arlann.
4.
The project required the construction of a confined detention facility ("CDF"),
located across
14th
Street from Lake Arlann, in order to store and de-water the sediment
hydraulically dredged and pumped from the lake bottom to the CDF. The CDF was an earthen
lagoon constructed of compacted earthen dikes with approximately 550,000 cubic yards of
capacity. Discharge from the CDF flowed back into Lake Arlann.
C.?
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
Count I:
WATER POLLUTION, in violation of Sections 12(a) of the Act, 415
ILCS 5112(a) (2006), and Section 302.203 of the Board's Water Pollution
Regulations, 35 111. Adm. Code 302.203
Count II:
EFFLUENT VIOLATIONS, in violation of Sections 12(a) & (f) of the
Act, 415 ILCS
5112(a)
& (f) (2006), and Sections 304.124(a) and
309.102(a) of the Board's Water Pollution Regulations, 35 Ill. Adm. Code
304.124(a) and 309.102(a).
3
Count III:
SCHEDULE VIOLATIONS, in violation of Sections 12(a) & (f) of the
Act, 415 ILCS 5112(a) & (f) (2006), Sections 305.102(b), 309.102(a) and
309.146(a) of the Board's Water Pollution Regulations, 35 III. Adm. Code
305.102(b), 309.102(a) and 309.146(a), and Special Condition 1 of
Industrial Construction Permit No. 2003-EA-3175
Count
IV:
?
STORM WATER VIOLATIONS, in violation of Sections 12(a) & (f) of
the Act, 415 ILCS 5/12(a) & (1) (2006), and Sections 305.102(b),
309.102(a) and 309.146(a) of the Board's Water Pollution Regulations, 35
111.
Adm. Code 305.102(b), 309.102(a) and 309.146(a)
D.?
Admission or Denial 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 or this Stipulation, and
this Stipulation shall not be interpreted as including such admission.
•
E.
?
Compliance Activities to Date
The Lake Arlann sediment removal project has been completed. At end of project, the
Respondent recommended control technologies, namely a polyamine flocculent and silt curtain,
to reduce the amount of total suspended solids ("TSS") entering Lake Arlann from the CDF. The
area of Lake Arlann surrounding the CDF outlet was the last area dredged, removing the
majority of sediment that escaped the CDF.
4
IV. APPLICABILITY
A.
This Stipulation shall apply to and be binding upon the Complainant 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 the
provisions of this Stipulation.
B.
No change in ownership, corporate status or operator of the facility shall in any way alter
the responsibilities of the Respondent under this Stipulation and Proposal for Settlement. In the
event of any conveyance of title, easement or other interest in the facility, the Respondent shall
continue to be bound by and remain liable for performance of all obligations under this
Stipulation.
C.
In the event that the Respondent proposes to sell or transfer any real property or
operations subject to any Order accepting and adopting the terms of this Stipulation and Proposal
for Settlement, the Respondent shall notify the Complainant 30 days prior to the conveyance of
title, ownership or other interest, including a leasehold interest in the facility or a portion thereof.
The Respondent shall make the prospective purchaser or successor's compliance with any Order
accepting and adopting the terms of this Stipulation a condition of any such sale or transfer and
shall provide a copy of this Stipulation and any Order accepting and adopting the terms of this
Stipulation to any such successor in interest. This provision does not relieve the Respondent
5
from compliance with any regulatory requirement regarding notice and transfer of applicable
facility permits.
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, 35 111_ Adm. Code, Subtitles A through H.
VI. 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 state the following:
1.
Elevated TSS levels, caused by the project threatened the health of the aquatic life
6
within Lake Arlann. The extent of the alleged deviation from the requirements of the Act and the
alleged violations by the Respondent have a substantial adverse effect on the statutory and
regulatory process.
2.
The Respondent directed the usage of the flocculent and other compliance
measures at the cost of the Lake Arlann Drainage District, but, no economic benefit was accrued
by the Respondent in this matter.
3.
Operation of CDF and dredging project was suitable for the area in which it
occurred.
4.
The use of a flocculent and sufficient stormwater controls at the site was both
technically practicable and economically reasonable.
5.
Once having been notified of its alleged non-compliance, the Respondent made
substantial efforts to come into compliance with the Act and the Board's regulations.
VII. 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;
7
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 state as follows:
1.
The dredging of Lake Arlann began in April of 2004. Elevated TSS levels were
observed by Illinois EPA in the lake as early as April 15, 2004. Insufficient stormwater controls
were also observed at this time. Reporting violations were observed throughout the entire
project. TSS violations persisted until at least June 2005.
The Respondent made substantial efforts to come back into compliance with the
Act, Board regulations and applicable federal regulations, once the Illinois EPA notified it of its
alleged non-compliance.
3.
The Respondent directed the usage of the flocculent and other compliance
measures at the cost of the Lake Arlann Drainage District, but, no economic benefit was accrued
by the Respondent in this matter.
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Twenty Thousand Dollars ($20,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
8
5.
A review of Illinois EPA records does not indicate any previous enforcement
action taken by the Illinois EPA against Cochran and Wilken, Inc.
6.
Cochran and Wilken, Inc. did not voluntarily disclose to the Illinois EPA the
violations that are the subject of this case.
7.
The settlement of this matter does not include a supplemental environmental
Project.
VIII. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of Twenty Thousand Dollars
($ 20,000,00) 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 payable to the Illinois EPA, designated to the Illinois Environmental Protection
Trust Fund and submitted to:
lllinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer Identification Number
9
(FEIN), 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:
Michael D. Mankowski
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2006), 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 ILCS 5/1003 (2006), 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 paid by certified check, money order or electronic funds 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 arid collection, Respondent's attorney may be reached at
the following address:
Edward R. Gower
Hinshaw & Culbertson LLP
400 South Ninth Street, Suite 200
Springfield, IL 62701
4,
For purposes of payment and collection, Respondent may be reached at the
following address:
10
Cochran and Wilken, Inc.
5201 South 6
th
Street Road
Springfield, Illinois 62703
5.
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 VIILE, 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 5/39(a) and(i) and/or 5/42(h)(2006).
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.0
("Allegations of Non-Compliance") of this Stipulation.
11
D.
Release from Liability
In consideration of the Respondent's payment of the Twenty Thousand Dollar
($20,000.00) penalty and any specified costs and accrued interest, completion of all activities
required hereunder, to Cease and Desist as contained in Section VIII.0 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 November 1, 2006. 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;
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
12
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 513.315 (2006), or entity other than the
Respondent.
E.
Modification of Stipulation
The parties may, by mutual written consent, agree to extend any compliance dates or
modify the terms of this Stipulation. A request for any modification shall be made in writing and
submitted to the contact persons identified in Section V1II.A. Any such request shall be made by
separate document, and shall not be submitted within any other report or submittal required by
this Stipulation. Any such agreed modification shall be in writing, signed by authorized
representatives of each party, and then accompany a joint motion to the Illinois Pollution Control
Board seeking a modification of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended.
F.
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.
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
13
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.
14
X
/e/4---(--
ROBERT A. MESSINA
Chief Legal Counsel
BY:
DATE:
210,
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 MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
THOMAS DAVIS, Chief
DATE:
CA 44
lo
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTIOM AGENCY
15
FOR THE RESPONDENT:
COCHRAN AND WILKEN, INC.
BY:
t
'
(1
1°-
'
DATE:
ii/D-Vt97
Name:
ce.
(iM,kaii
Title:
Pees;664+
