CEO
SEP
182008
STATE
OF
ILLINOIS
OFFICE
OF
THE
ATTORNEY
GENERAL
ttofl
Control
Board
STATE
OF
ILLINOIS
Lisa
Madigan
A’VT’ORNEY
GENERAL
September
17,
2008
John
T.
Therriault,
Assistant
Clerk
Assistant
Clerk
of the
Board
Illinois
Pollution
Control
Board
James
R.
Thompson
Center,
Ste.
11-500
100 West
Randolph
Chicago,
Illinois
60601
Re:
People
v.
Washington
Trails
Edge,
LLC
PCB No.
07-104
Dear
Clerk:
Enclosed
for filing
please
find
the
original
and one
copy
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
envelope.
Thank
you
for
your
cooperation
and consideration.
Very
truly
yours,
Michael
744
D.
Mankowski
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
MDM/pjk
Enclosures
500 South
Second
Street,
Springfield,
Illinois
62706
• (217)
782-1090
• TTY:
(877)
844-5461
• Fax:
(217)
782-7046
100
West
Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
• TT’Y:
(800)
964-3013
• Fax:
(312)
814-3806
BEFORE THE ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE STATE
OF
ILLINOIS,
)
)
Complainant,
vs.
)
PCB
No.
07-1
04
)
(Enforcement - Water)
WASHINGTON TRAILS EDGE, LLC,
)
an
Illinois limited liability company,
)
G
cø”
Respondents.
)
NOTICE OF FILING
9SoøO’
To:
Gary A.
Peters
Howard & Howard
Attorneys
P.C.
One Technology
Plaza
211
Fulton Street, Suite 600
Peoria,
IL 61602
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
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
LitigationDvi ion
BY:
%%‘
MICHAEL D.
MANKOWSKI
Assistant Attorney
General
Environmental Bureau
500
South Second
Street
Springfield, Illinois
62706
217/782-9031
Dated:
September 17, 2008
CERTIFICATE OF SERVICE
I hereby certify that I did on September
17, 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:
Gary A. Peters
Howard
&
Howard Attorneys P.C.
One Technology Plaza
211 Fulton Street, Suite 600
Peoria, IL 61602
and the
original
and
ten copies
by
First Class Mail with postage thereon
fully
prepaid
of the
same
foregoing
instrument(s):
To:
John T.
Therrault, Assistant
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
%ZM
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,
)
vs.
)
PCB No. 07-1 04
)
(Enforcement - Water)
WASHINGTON TRAILS
EDGE, LLC,
)
an
Illinois
limited
liability
company,
)
Respondents.
)
SEP
182008
SThTE
OF
ILLINOIS
MOTION FOR RELIEF FROM HEARING
REQUIEftContr0I
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).
I
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
MATTHEWJ. DUNN, Chief
Environmental Enforcement/Asbestos
Li gation Di ision
BY:
MICHAEL D. MANKOWSKI
Environmental Bureau
Assistant Attorney General
500
South Second
Street
Springfield, Illinois 62706
217/782-9031
Dated:
September 17, 2008
2
BEFORE TIlE
ILLINOIS
POLLUTION
CONTROL BOARD
PEOPLE
OF THE
STATE
OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB No. 07-104
)
(Water-Enforcemej4)
Q
WASHINGTON TRAILS
EDGE,
LLC,
)
an Illinois
limited liability company,
)
)
Respondent.
)
STIPULATION
AND
PROPOSAL FOR
SETTLN
St1
GO’
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 WASHINGTON
TRAILS
EDGE,
LLC (“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.
This stipulation
of facts is made and
agreed
upon
for
purposes
of settlement
only and as a factual
basis for the Board’s
approval
of this Stipulation
and
issuance
of relief.
None of
the
facts stipulated
herein shall be
introduced
into
evidence
in
any
other
proceeding regarding
the violations
of
the
Illinois Environmental
Protection
Act (“Act”),
415 ILCS
5/1 et seq. (2006), and
the
Board’s Regulations,
alleged in the
Complaint
except as
otherwise
provided
herein. It
is
the
intent of the
parties to this Stipulation
that it be
a final
adjudication
of this matter.
I. STATEMENT
OF FACTS
A.
Parties
to the Stipulation
1.
On
April
19, 2007,
a
Complaint was
filed on behalf
of
the
People
of
the State
of
1
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
limited
liability
company
in good
standing
in the State
of Illinois.
4.
The
Respondent
owns
a
multi-section
subdivision
under
construction
called Trails
Edge
Subdivision
(“site”)
that
is
located west
of Dallas
Road in Washington,
Tazewell
County,
Illinois.
5.
Runoff
from
the site
drains to
a
stormwater
retention
pond
and into an
unnamed
natural
stream which
eventually
flows
into
Farm Creek.
6.
On
March
26, 2004,
the Illinois
EPA issued
to the Respondent
coverage
under
NPDES general
stormwater
permit
number
ILR1
OA1 44 for
Section
3 of
Trails
Edge Subdivision
(“Section 3”).
7.
On
August
23, 2004,
the Illinois
EPA issued
to the Respondent
coverage
under
NPDES
general
stonnwater
permit
number
ILR1 0B23
1 for
Section
5 of Trails Edge
Subdivision
(“Section
5”).
8.
On
July
12, 2006,
the
Illinois
EPA
issued to the
Respondent
coverage
under
NPDES
general
stormwater
permit
number
ILR1
0F822 for
Section
6 of
Trails Edge
Subdivision
(“Section
6”).
2
B.
Allegations
of Non-Compliance
Complainant
contends
that
the
Respondent
has
violated
the
following
provisions
of the
Act
and Board
regulations:
Count I:
NPDES
PERMIT
VIOLATIONS,
in
violation
of Section
12(f)
of
the
Act,
415
ILCS
5/12(f)
(2006).
Count
II:
WATER
POLLUTION,
in violation
of Sections
12(a)
and
(d)
of
the Act,
415
ILCS 5/12(a)
and
(d) (2006)
and
Section
302.203
of
the Board’s
Water
Pollution
Regulations,
35
Ill.
Adm. Code
302.203.
C.
Non-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
I.B
herein,
and
this
Stipulation
shall
not
be
interpreted
as
including
such admission.
ft
Compliance
Activities
to Date
The
Respondent
has
developed
and
implemented
a proper
SWPPP
for
the site.
Construction sites are
being
properly
controlled.
Areas
of
the site
not currently
under
construction
have
been properly
stabilized
as
required
by
the
Respondent’s
general
stormwater
permit.
3
II.
APPLICABILITY
This
Stipulation
shall
apply to
and be
binding
upon the
Complainant,
the
Illinois
EPA
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.
This
Stipulation
may
be used
against the
Respondent
in
any
subsequent
enforcement
action
or pennit
proceeding
as proof
of a
past adjudication
of
violation
of
the
Act and the
Board
Regulations
for all violations
alleged in
the Complaint
in
this
matter,
for purposes
of
Sections
39 and 42
of the
Act, 415
ILCS
5/39 and 42
(2006).
III. 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
4
5.
any subsequent compliance.
In
response to these
factors, the parties to
this Stipulation state the following:
1.
The water quality of the
unnamed stream and Farm Creek
was adversely affected
by the lack of
stormwater
controls at the site.
2.
There is
social and economic
value in building new homes in the area.
3.
Construction
of the subdivision
was suitable for the area in which it
occurred.
4.
Using the proper
erosion controls at the site and applying
for and complying
with
a General NPDES stormwater
permit was both technically practicable
and economically
reasonable.
5.
Respondent has subsequently complied with the
Act and the Board
Regulations.
IV. 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
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 lack
of stormwater controls
was
first observed
by
the
Illinois
EPA on
April
12,
2005. On subsequent
inspections
in 2005, 2006, and 2007,
the
Illinois
EPA observed
improvement
in the stormwater
controls
used at the site. However,
significant
erosion
was
observed
on numerous visits.
Substantial
compliance
with
the
Act and Board
Regulations
has
been achieved
at the site.
2.
Once made
aware
of its violations of
the Act and
Board Regulations,
the
Respondent
made a diligent
attempt
in resolving
the violations. The
Respondent
has
subsequently
brought the site
into substantial
compliance.
3.
Respondent benefitted
economically
as
a
result of
the noncompliance
in this
matter.
4.
Complainant has determined,
based
upon the specific facts
of this matter,
that a
penalty of Twenty
One Thousand
Dollars ($21,000.00)
will serve as an incentive
to the
Respondent and
others
involved
in construction to obtain
the required
construction
permits
and
to comply
with the terms of the
NPDES
general stormwater
permit.
5.
A review
of Illinois
EPA
records
does not indicate
any previous
enforcement
action
taken
by the
Illinois
EPA against
the Respondent.
6
6.
The Respondent
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
enviromnental
project.
V. TERMS
OF SETTLEMENT
A.
Penalty
Payment
1.
The
Respondent
shall pay
a
civil penalty
of Twenty
One
Thousand
Dollars
($21,000.00)
within thirty
(30)
days
from
the
date the
Board adopts
and accepts
this
Stipulation.
B.
Payment
Procedures
All
payments
required
by
this Stipulation
shall be
made by
certified
check
or money
order payable
to the Illinois
EPA
for
deposit
into the Environmental
Protection
Trust
Fund
(“EPTF”).
Payments
shall be sent
by
first class
mail
and
delivered
to:
Illinois
Environmental
Protection
Agency
Fiscal
Services
1021
North Grand
Avenue
East
P.O.
Box 19276
Springfield,
IL
62794-9276
The name,
case number
and the
Respondent’s
federal
tax identification
number
shall appear
on
the
face
of
the certified
check
or money
order.
A copy
of
the certified
check
or money
order
and
any
transmittal
letter shall
be
sent to:
7
Michael D.
Mankowski
Assistant Attorney
General
Environmental
Bureau
500 South
Second Street
Springfield, Illinois
62702
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 I.B
(“Allegations of Non-Compliance”)
of this Stipulation.
D.
Release from Liability
In consideration
of the Respondent’s penalty payment
of
the
Twenty One Thousand
Dollars ($21,000.00) and any
specified costs and accrued interest, its commitment to
Cease and
Desist as
contained in Section
V.C. above,
completion
of
all activities
required hereunder,
and
upon the 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;
8
b.
liability
for future
violation
of
state,
federal,
local, and
common laws
andlor
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
3.3 15 of the
Act, 415
ILCS
5/3.3
15 (2006),
or entity
other
than
the
Respondent.
E.
Enforcement
and
Modification
of
Stipulation
Upon
the
entry
of the Board’s
Order
approving
and accepting
this
Stipulation,
that
Order
is a binding
and enforceable
order
of the
Board
and may
be enforced
as such
through
any
and
all
available
means.
F.
Execution
of Stipulation
The undersigned
representatives
for each
party to this
Stipulation
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.
9
WHEREFORE,
the parties
to
this Stipulation
request that
the Board adopt and
accept
the
foregoing
Stipulation
and
Proposal for
Settlement as written.
PEOPLE
OF THE
STATE OF ILLINOIS,
FOR
THE ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
LISA
MADIGAN
Attorney General
State
of
Illinois
DOUGLAS
P. SCOTT, Director
Illinois Environmental
Protection
Agency
MATTHEW
J. DUNN, Chief
Environmental
Enforcement!
Asbestos
Litigation Division
BY:
BY:
4
THOMAS
DAVIS, Chief
Environmental
Bureau
ROBERT
A. MESS
Assistant Attorney
General
Chief
Legal
Counsel
DATE:
/(
DATE:
Washington Trails
Edge,
LLC
BY:
•.,
DATE:
2.
c
(
Name:
L
Title:
10