RECEIVED
CLERK'S OFFICE
MAY 1 6 2008
STATE OF ILLINOIS
Pollution Control
Board
Lisa Madigan
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. Lake Arlann Drainage District
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,
Michae P
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 • TTY: (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 jvisi
BY:
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
?
PCB No. 07-32
(Enforcement - Water)
LAKE ARLANN DRAINAGE DISTRICT,
an Illinois drainage district,
Respondent.
NOTICE OF FILING
To:?
Thomas R. Cullen
Elliff, Keyser, Oberle & Dancey, P.C.
109 S. Fourth Street
P.O. Box 873
Pekin, IL 61555-0873
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. MA KOWSKI
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: May 14, 2008
CERTIFICATE OF SERVICE
I hereby certify that I did on May 14, 2008, send by First Class Mail, with postage thereon
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: ,Thomas R. Cullen
Elliff, Keyser, Oberle & Dancey, P.C.
109 S. Fourth Street
P.O. Box 873
Pekin, IL 61555-0873
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.
LAKE ARLANN DRAINAGE DISTRICT,
an Illinois drainage district,
Respondent.
PCB No. 07-32
(Enforcement -
Map
CLERK'S
OFFICE
MAY
I
ti
2008
STATE O F ILLINOIS
Pollution Control
Board
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) (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
)
BY:
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
tigation Division
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
MICHAEL
a
MANKOWSKI
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.
)
)
LAKE ARLANN DRAINAGE DISTRICT,
an Illinois drainage district,
Respondent.
)
)
PCB No. 07-32
(Water-Enforere%vso
tc
da4t
s
OFFICE
SAY 1 6 2008
STATE OF
InLLINOIS
CotroIBoard
STIPULATION AND PROPOSAL FOR SETTLE11ivNi
A4to
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 LAKE ARLANN DRAINAGE DISTRICT, ("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.
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. (2006).
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.
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.
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 (2006).
3.
At all times relevant to the Complaint, Respondent was and is an Illinois
drainage district.
B.?
Site Description
1.
At all times relevant to this Complaint, Lake Arlann Drainage District was
the owner and operator of the Lake Arlann sediment retention lagoon construction
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 14
th
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 5/12(a) (2006), and Section 302.203 of the Board's
Water Pollution Regulations, 35 I11.
Adm. Code 302.203
Count II:
EFFLUENT VIOLATIONS, in violation of Sections 12(a) & (f) of
the Act, 415 ILCS 5/12(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 5/12(a) & (f) (2006), Sections 305.102(b),
309.102(a) and 309.146(a) of the Board's Water Pollution
Regulations, 35 Ill. 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) & (f) (2006), and Sections
305.102(b), 309.102(a) and 309.146(a) of the Board's Water
Pollution Regulations, 35 Ill. Adm. Code 305.102(b), 309.102(a)
and 309.146(a)
D.
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 the end of the
project, the Respondent employed 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. 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, or employees 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.
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 I11. 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
-5-
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 posed a potential threat to the health of the aquatic
life within Lake Arlann.
2.
The Respondent initially utilized alternative control methods which
proved less effective, the Respondent gained economic benefit by failing to use
polyamine coagulant during most of the dredging, to prevent silt and sediment from the
CDF from reentering Lake Arlann.
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 non-compliance, the Respondent made
substantial efforts to come into compliance with the Act and the Board's regulations.
-6-
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;
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
-7-
stormwater controls were also observed at this time. Reporting violations were observed
throughout the entire project. TSS violations persisted until at least June 2005.
2.
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 non-compliance.
3.
The Respondent initially utilized alternative control methods which
proved less effective, the Respondent gained economic benefit by failing to use
polyamine coagulant during most of the dredging, to prevent silt and sediment from the
CDF from reentering Lake Arlann.
4.
Complainant has determined, based upon the specific facts of this matter,
that a penalty of Fifteen Thousand Dollars ($15,000.00) will serve to deter further
violations and aid in future voluntary compliance with the Act and Board regulations.
5.
A review of Illinois EPA records does not indicate any previous
enforcement action taken by the Illinois EPA against Lake Arlann Drainage District.
Lake Arlann Drainage District did not voluntarily disclose to the Illinois
EPA the violations that are the subject of this case.
7.
The settlement of this matter does not include a supplemental
environmental project.
VIII. TERMS OF SETTLEMENT
A.
?
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of Fifteen Thousand
Dollars ($ 15,000.00) within thirty (30) days from the date the Board adopts and accepts
-8-
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 or money order 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. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer Identification
Number (FEIN), shall appear on the check. A copy of the certified check or money order
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
-9-
check or money order 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's attorney may be
reached at the following address:
Thomas R. Cullen
Elliff, Keyser, Oberle & Dancey, P.C.
109 S. Fourth Street
P.O. Box 873
Pekin, IL 61555-0873
4.
For purposes of payment and collection, Respondent may be reached at
the following address:
Lake Arlann Drainage District
3 Beachcomber Place
Pekin, IL 61554
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 Compliance
1.
The parties stipulate that the Respondent is in substantial compliance with
NPDES Permit No. ILR108534 and Illinois EPA Water Pollution Control Permit No.
2003-EA-3175-1 as modified and reissued, August 2, 2007. Respondent shall file
Notices of Termination of the aforementioned permits with the Illinois EPA.
-10-
C.
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.E, 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.
D.
Cease and Desist
The Respondent has ceased and will refrain 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.
E.
Release from Liability
In consideration of the Respondent's payment of the Fifteen Thousand Dollar
($15,000.00) 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 temis of this
Stipulation and Proposal for Settlement, the Complainant releases, waives and discharges
-11-
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;
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 (2006), or
entity other than the Respondent.
F.
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 Respondent's facility which is the subject of this
-12-
Stipulation, at all reasonable times for the purposes of carrying out 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.
G.
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 VIII.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.
H.
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.
-13-
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.
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:
DATE: C 1 0
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY:
ROBERT . MES INA
Chief Legal Counsel
LAKE ARLANN DRAINAGE DISTRICT
DATE:
1/
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Name:,
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Title:
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