BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
RED SEAL DEVELOPMENT
)
CORPORATION, an Illinois Corporation, and
)
LENZINI EXCAVATING COMPANY,
an
)
Illinois Corporation,
)
)
Respondents,
)
PCB No. 09-08
.
(Enforcement - Water)
NOTICE OF FILING
TO:
JerylOlson
Seyfarth Shaw LLP
131 S. Dearborn Street, Suite 2400
Chicago, Illinois 60603
John W. Watson
Baker
&
McKenzie LLP
One Prudential Plaza
130
E. Randolph Street, Suite 3700
Chicago, Illinois 60601
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that on the 7
th
day of August, 2008, I filed with the Clerk of the
Illinois Pollution Control Board a Motion to Request Relief From Hearing Requirement With
Respect to Respondent Red Seal and a Stipulation and Proposal for Settlement with Red Seal
Development Corporation Only, copies
of which are attached hereto and hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illi is
Electronic Filing - Received, Clerk's Office, August 7, 2008
Date: August 7, 2008
Environmental Bureau
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-2069
Electronic Filing - Received, Clerk's Office, August 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
RED SEAL DEVELOPMENT
)
CORPORATION, an Illinois Corporation, and
)
LENZINI EXCAVATING COMPANY,
an
)
Illinois Corporation,
)
)
Respondents,
)
PCB No. 09-08
(Enforcement - Water)
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT WITH RESPECT TO RESPONDENT RED SEAL
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 July 28, 2008, a Complaint was filed with the Pollution Control Board
("Board") in this matter. On August
7, 2008, a Stipulation and Proposal for Settlement with Red
Seal Development Corporation Only was filed with the Board.
2.
Section 31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2), effective August
1, 1996, 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 ofthe 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
Electronic Filing - Received, Clerk's Office, August 7, 2008
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 written 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 ofa
hearing pursuant to 415 ILCS 5/31 (c)(2), effective August 7, 2008.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
HARDA.PE
A'ssistantAttorney General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2069
Electronic Filing - Received, Clerk's Office, August 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
RED SEAL DEVELOPMENT
)
CORPORATION,
an Illinois Corporation, and )
LENZINI EXCAVATING COMPANY, an
)
Illinois Corporation,
)
)
Respondents,
)
PCB No.
0'1-08
(Enforcement - Water)
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH RED SEAL
DEVELOPMENT CORPORATION 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 the Respondent, RED SEAL DEVELOPMENT CORPORATION, an Illinois corporation
("Red Seal" or "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'sapproval of this Stipulation and issuance of relief. None of the
facts stipulated herein shall be introduced into evidence in any other proceeding regarding
violations of the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1
et seq.
(2006), and
the Board'sRegulations, 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 ofthis matter.
1
Electronic Filing - Received, Clerk's Office, August 7, 2008
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On July 28, 2008, 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 this Complaint, Respondent Red Seal was and is an
Illinois corporation in good standing with the State
of Illinois.
4.
At all times relevant to this Complaint, Red Seal was the general contractor for a
development known
as the "Deer Park Estates", a parcel of land of approximately 14.25 acres in
size located at the intersection
of Long Grove Road and Quentin Road in the City of Deer Park, .
Lake County, Illinois (the "Site").
5.
Red Seal engaged in construction activities at the Site. These construction
activities involved excavating and grading soil at the Site. Between August 24, 2006 and
October 13, 2006, on dates better known to the Respondent, disturbed soil and sediment from the
Site was carried by storm water into an unnamed tributary of Buffalo Creek and into an area of
wetlands that is located near the southeast comer of the Site.
2
Electronic Filing - Received, Clerk's Office, August 7, 2008
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondent has violated the following
provisions
of the Act and Board regulations:
Count
I:
Count II
Count III:
Count IV:
Count
V:
Causing, threatening or allowing water pollution, in violation of Section
12(a)
of the Act, 415 ILCS
5/12(a) (2006).
Causing, threatening or allowing a violation of water quality standards, in
violation
of Section 12(a) of the Act, 415 ILCS
5/12(a)
(2006), and
Section 302.203
of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 302.203.
Creating a water pollution hazard, in violation
of Section 12(d) of the
Act, 415 ILCS
5/12(d) (2006).
Failure to implement and comply with the stormwater pollution
prevention plan, in violation
of Part IV. of the General Stormwater
Permit, Section 12(f)
of the Act, 415 ILCS 5/12(f)(2006), and Section
309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a).
Causing or allowing the construction and/or installation
of a sanitary
sewer, in violation
of Section 12(b) ofthe Act, 415 ILCS
5/12(b)(2006),
and Section 309.202(a) ofthe Board Water Pollution Regulations, 35 Ill.
Adm. Code 309.202(a).
C.
Admission of Violations
Respondent neither admits nor denies the violations alleged in the Complaint filed in this
matter and referenced within Section III.B herein.
D.
Compliance Activities to Date
The portions of the Site relevant to the Complaint were fully stabilized and the alleged
storm water violations have ceased.
3
Electronic Filing - Received, Clerk's Office, August 7, 2008
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
ofany 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 permit 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 ofthe 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
Electronic Filing - Received, Clerk's Office, August 7, 2008
5.
any subsequent compliance.
In response to these factors, the parties to this Stipulation state the following:
1.
The alleged violations potentially threatened human health and the environment
by discharging contaminants into the waters of the State.
2.
The Respondent's construction activities had a social and economic benefit.
3.
The Site was suitable for the area in which it is located.
4.
It
is both technically practicable and economically reasonable to implement
adequate erosion control measures at the Site in compliance with the Act and Board regulations.
5.
The 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
5
Electronic Filing - Received, Clerk's Office, August 7, 2008
Act;
5.
the number, proximity in time, and gravity of previously adjudicated
violations
of this Act by the respondent;
6.
whether the respondent voluntarily
sylf-disc1osed, 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 to this Stipulation state as follows:
1.
The alleged violations occurred at the Site during a period of time beginning no
later than August 24, 2006 and continuing until at least October 13, 2006.
2.
The Respondent was diligent in attempting to return to compliance with the Act,
and Board regulations, once the Illinois EPA notified it
of its alleged noncompliance.
3.
The penalty obtained exceeds any economic benefit realized by the Respondent as
a result
of any noncompliance with the Act or Board regulations.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts
of this matter, that a penalty of Fifteen Thousand and Five Hundred Dollars ($15,500.00) will
serve to deter further violations and aid in future voluntary compliance with the Act and Board
regulations.
5.
There is no record of any prior enforcement action brought against the Respondent
under the Act.
6.
Self-disclosure is not at issue in this matter.
6
Electronic Filing - Received, Clerk's Office, August 7, 2008
7.
The settlement of this matter does not include a supplemental environmental
project.
V.
TERMS OF SETTLEMENT
A.
Penalty Payment
The Respondent shall pay a civil penalty in the sum of Fifteen Thousand and Five
Hundred Dollars ($15,500.00) within thirty (30) days from the date the Board adopts and accepts
this Stipulation.
B.
Stipulated Penalties, Interest and Default
1.
If the Respondent fails to make any payment required by this Stipulation on or
before the date upon which the payment is due, the Respondent shall be in default and the
remaining unpaid balance
of the penalty, plus any accrued interest, shall be due and owing
immediately. In the event
of default, the Complainant shall be entitled to reasonable costs of
collection, including reasonable attorney's fees.
2.
Pursuant to Section 42(g) of the Act, interest shall accrue on any penalty amount
owed
by the Respondent not paid within the time prescribed herein. Interest on unpaid penalties
shall begin to accrue from the date such are due and continue to accrue to the date full payment is
received. Where partial payment is made on any penalty amount that is due, such partial
payment shall be first applied to any interest on unpaid penalties then owing.
C.
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").
7
Electronic Filing - Received, Clerk's Office, August 7, 2008
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:
Richard
A. Perry
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
18
th
Floor
Chicago, Illinois 60602
D.
Future Compliance
1.
In addition to any other authority, the Illinois EPA, its employees and
representatives, and the Attorney General, her employees and representatives, shall have the right
of entry into and upon the Site which is the subject of this Stipulation, at all reasonable times for
the purposes
of conducting inspections and evaluating compliance status. 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.
2.
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.
8
Electronic Filing - Received, Clerk's Office, August 7, 2008
3.
Respondent shall cease and desist from future violations of the Act and Board
Regulations that were the subject matter
of the Complaint.
E.
Release from Liability
In
consideration of the Respondent'spayment ofa $15,500.00 penalty and commitment
to cease and desist as contained in Section V.D.3, and upon the Board'sapproval of this
Stipulation, the Complainant releases, waives and discharges the Respondent from any further
liability or penalties for the violations
of the Act and Board Regulations that were the subject
matter
of the Complaint herein. The release set fortll above does not extend to any matters other
than those expressly specified in the Complaint filed on July 28, 2008, neither does it extend
to
any other person other than the signatory to this Stipulation. 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.
liabiJity 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
9
Electronic Filing - Received, Clerk's Office, August 7, 2008
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.
F.
Enforcement 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.
G.
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.
WHEREFORE, the parties to this Stipulation request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
10
Electronic Filing - Received, Clerk's Office, August 7, 2008
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS
P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
RED SEAL DEVELOPMENT CORP:
BY:
Name:
-----------
Title:
_
DATE:
---,-'-~lt-b
......
~'----------
DATE:
_
11
Electronic Filing - Received, Clerk's Office, August 7, 2008
---- ----- -----
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
----------------------------------------,
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
_
ROBERT
A. MESSINA
Chief Legal Counsel
DATE:,_.
_
RED SEAL DEVELOPMENT CORP.
BY:
Name:
gC)..
Title:_VI'LL-
~Cltl~
1:
C
Fa
DATE:
--------;---------
DATE:.
_
11
Electronic Filing - Received, Clerk's Office, August 7, 2008
CERTIFICATE OF SERVICE
I, RICHARD A. PERRY, an Assistant Attorney General in this case, do certify that I
caused to be served this 7th day
of August, 2008, the foregoing Motion to Request ReIiefFrom
Hearing Requirement With Respect to Respondent Red Seal, Stipulation and Proposal for
Settlement with Red Seal Development Corporation Only, 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 69 West Washington Street, Chicago, Illinois, at or before the hour
of 5:00 p.m.
Electronic Filing - Received, Clerk's Office, August 7, 2008
