BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
FIRST COUNTRY HOMES, LLC, an
Illinois limited liability company,
Respondent.
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PCB 2006-173
(Enforcement - Water)
NOTICE OF FILING
To:
See attached Service List
PLEASE TAKE NOTICE that on the
11 th day of February, 2008, the People of the State of
Illinois, filed with the Illinois Pollution Control Board, a MOTION FOR RELIEF FROM HEARING
REQUIREMENT and a STIPULATION AND PROPOSAL FOR SETTLEMENT, true and correct
copies
of which are attached hereto and is hereby served upon you.
PEOPLE
OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney General
of the State of Illinois
By:
George
heophi os
Assistant Attorney General
Environmental Bureau
69 West Washington St.,
18
th
FIr.
Chicago, IL 60602
(312) 814-6986
DATE: February 11,2008
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, February 11, 2008
Mr. Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, IL 60601
Joe Greer
Gardiner Koch
&
Weisberg
53 W. Jackson Blvd., Suite 950
Chicago, Illinois 60604
SERVICE LIST
Electronic Filing - Received, Clerk's Office, February 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
FIRST COUNTRY HOMES, LLC, an
Illinois limited liability company,
Respondent.
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)
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PCB 2006-173
(Enforcement - Water)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and hereby moves for relief from the hearing
requirement in this case pursuant to Section
31 (c)(2) of the Illinois Environmental Protection Act
("Act"), 415 ILCS
5/31 (c)(2) (2006), and Section 103.300 of the Illinois Pollution Control Board
C'Board") Procedural Rules, 35
Ill.
Adm. Code 103.300. In support of this Motion, the Complainant
states
as follows:
1.
Section 31 (c)(2) of the Act allows the parties in certain enforcement cases to request
relieffrom the mandatory hearing requirement where the parties submit to the Board a Stipulation and
Proposal for Settlement. Section 31 (c)(2) provides as follows:
Notice; complaint; hearing.
***
(c)(2) Notwithstanding the provisions ofsubdivision (l) ofthis 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 (I). Unless the Board, in its discretion, concludes that a hearing will be held,
the Board shall cause notice
of the stipulation, proposal and request for relief to be
Electronic Filing - Received, Clerk's Office, February 11, 2008
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 demand 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).
2.
Board Procedural Rule 103.300 provides, in relevant part, as follows (emphasis in
original):
Request for
Relief from Hearing Requirement in State Enforcement Proceeding.
(a)
Whenever a complaint has beenfiledon behalfofthe Agency or by the People ofthe
State of Illinois, the parties may file with the Board a proposed stipulation and
settlement accompanied by a request for
relieffrom the requirement of a hearing
pursuant to Section 31 (c)(2) of the Act ....
3.
On May 16, 2006, the Complaint in this matter was filed with the Board.
4.
Subsequently, the parties to this action reached agreement
on a Stipulation and Proposal
For Settlement, which is being filed with the Board concurrently with this motion.
No hearing is
currently scheduled in this case.
WHEREFORE, the Complainant, PEOPLE OF
THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
ofthe State ofIllinois, respectfully moves for relieffrom the requirement
of a hearing pursuant to Section 31(c)(2) of the Act and Board Procedural Rule 103.300.
Respectfully submitted,
PEOPLE OF
THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
DATE: February
11,2008
BY:
GEORG
. THEOPHILO
Assistant Attorney General
Environmental Bureau/North
69 W. Washington St,
18
th
FIr
Chicago, Illinois 60602
312-814-6986
Electronic Filing - Received, Clerk's Office, February 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
FIRST COUNTRY HOMES, LLC, an
Illinois limited liability company,
Respondent.
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)
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)
)
)
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PCB 06-173
(Enforcement - Water)
STIPULATION AND PROPOSAL FOR SETTLEMENT
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 First Country Homes, LLC ("Respondent" or "First Country"),
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, First Country 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.
Electronic Filing - Received, Clerk's Office, February 11, 2008
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.
(2004).
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 May 16, 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 (2004), against First Country.
2.
The Illinois EPA is an administrative agency of the State of Illinois,
created pursuant to Section 4
ofthe Act, 415 ILCS 5/4 (2004).
3.
At all times relevant to the Complaint, First Country was and is an Illinois
limited liability 'companythat is authorized to transact business in the State
of Illinois.
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Electronic Filing - Received, Clerk's Office, February 11, 2008
B.
Site Description
1.
At all times relevant to the Complaint, First Country was the owner and
developer
of thirty residential lots located in Monee, Will County, Illinois and known as
Country Meadows - Phase 8 ("Site").
2.
On December 28, 2004, Illinois EPA inspected the Site.
C.
Allegations of Non-Compliance
Complainant contends that First Country has violated the following provisions of
the Act and Board regulations:
Count
I:
Count II:
Failing to obtain a sewer construction permit prior to installing a
sanitary sewer system, in violation
of Section 12(a) ofthe Act, 415
ILCS 5/12(a) (2004), Section 12(b)
of the Act, 415 ILCS 5/12(b)
(2004) and 35 Ill. Adm. Code 309.202(a).
Threatening to allow and/or allowing storm water discharges from
the Site without first obtaining an NPDES storm water permit, in
violation of Section 12(f) of the Act, 415 ILCS
5/12(f)
(2004), and
35 Ill. Adm. Code 309.I02(a).
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 IILC herein, and this Stipulation shall not be
interpreted as'includingsuch admission.
E.
Compliance Activities to Date
A.
On December 2, 2004, First Country submitted an application for storm
water permit coverage for the Site.
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Electronic Filing - Received, Clerk's Office, February 11, 2008
B.
On January 3, 2005, the Illinois EPA issued coverage to the Site under the
NPDES general storm water permit.
C.
On April 27, 2005, First Country submitted a complete and properly
signed permit application for a sanitary sewer system construction permit at the Site.
D.
On June 8, 2005, the Illinois
EPA granted as-built permit coverage for the
Site'ssewer lines.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and First
Country, and any officer, director, agent,
or employee of First Country, as well as any
successors
or assigns of First Country. First Country 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.
No change in ownership, corporate status or operator of the facility shall in any
way alter the responsibilities of First Country under this Stipulation and Proposal for
Settlement.
In
the event of any conveyance of title, easement or other interest in the
facility, First Country shall continue to be bound by and remain liable for performance of
all obligations under this Stipulation.
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Electronic Filing - Received, Clerk's Office, February 11, 2008
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of First Country 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(c) of the Act, 415 ILCS 5/33(c)(2004), 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.
The State alleges that human health and the environment were threatened
and the Illinois EPA's information gathering responsibilities hindered by First Country's
violations.
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Electronic Filing - Received, Clerk's Office, February 11, 2008
2.
First Country's development of the Site provided social and economic
benefit. The Site will increase the local tax base, provide needed residential housing in
the area, and provide additional income to the local economy.
3.
First Country'sdevelopment of residential housing at the Site was suitable
for the area.
4.
The State contends that obtaining sewer construction and NPDES permits
prior to beginning construction at the site and compliance with the terms
of those permits
was both technically practicable and economically reasonable. First Country contends
that obtaining sewer construction and NPDES permits prior to beginning construction at
the site and compliance with the terms
of those permits was neither technically
practicable nor economically reasonable
5.
First Country has subsequently complied with the Act and the Board
Regulations.
VII.
CONSID~RATION
OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2004), 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
provideq by this Act;
3.
any economic benefits accrued by the respondent because of delay
in compliance with requirements, in which case the economic
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Electronic Filing - Received, Clerk's Office, February 11, 2008
benefits shall be detennined 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 perfonn.
In response to these factors, the parties state as follows:
1.
First Country failed to obtain a pennit for sewer construction prior to
beginning sewer construction activities at the Site and threatened to allow stonn water
discharges from the Site without obtaining an NPDES stonn water pennit. These alleged
violations began on or before December 28, 2004, or a. date better known to First
Country, and were resolved by Illinois EPA issuing an NPDES pennit on January 3, 2005
and an as-built sewer construction pennit on June
8, 2005.
2.
Respondent attempted to come back into compliance with the Act and
Board Regulations, once Illinois EPA notified it
of its noncompliance, by seeking to
obtain necessary signatures for its sewer construction pennit application.
3.
First Country obtained an economic benefit from advancing the
completion
of its development at the Site. The civil penalty obtained herein exceeds the
economic benefit that First Country may have accrued as a result
of its non-compliance.
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Electronic Filing - Received, Clerk's Office, February 11, 2008
4.
Complainant has determined, based upon the specific facts of this matter,
that a penalty
of Thirty Thousand Dollars ($30,000.00) 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.
First Country shall pay a civil penalty in the sum of Thirty Thousand
Dollars ($30,000.00) within thirty (30) days from the date the Board adopts and accepts
this Stipulation.
First Country stipulates that payment has been tendered to First
Country's attorney
of record in this matter in a form acceptable to that attorney. Further,
First Country stipulates that said attorney has been directed to make the penalty payment
on behalf of First Country, 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
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Electronic Filing - Received, Clerk's Office, February 11, 2008
The name and number ofthe case and First Country'sFederal Employer Identification
Number (FEIN), shall appear on the check. A copy
of the certified check or money order
and any transmittal letter shall be sent to:
George D. Theophilos
Assistant Attorney General
Environmental Bureau
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
James
Day
Assistant Counsel
Illinois Environmental Protection Agency
500 South Second Street
Springfield, Illinois 62702
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2004), 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 (2004). 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 and collection, First Country may be reached at
the following address:
First Country Homes, LLC
25640 Jasmine Lane
Monee, IL 60449
9
Electronic Filing - Received, Clerk's Office, February 11, 2008
4.
In the event of default of this Section VIlLA, 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 VIILD, below, First Country
hereby agrees that this Stipulation may be used against First Country 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)(2004). Further, First Country 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
First Country 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 I1LC
("Allegations ofNon-Compliance") of this Stipulation.
D.
Release from Liability
In consideration of First Country's payment of the $30,000.00 penalty and any
specified costs and accrued interest, completion
of all activities required hereunder, to
Cease and Desist as contained in Section VIII.C and upon the Pollution Control Board's
acceptance and approval
of the terms of this Stipulation and Proposal for Settlement, the
10
Electronic Filing - Received, Clerk's Office, February 11, 2008
Complainant releases, waives and discharges First Country 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 16, 2006. The
Complainant reserves, and this Stipulation is without prejudice to, all rights
of the State
of Illinois against First Country 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, or entity
other than First Country.
E.
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 Site which is the subject of this Stipulation, at all
11
Electronic Filing - Received, Clerk's Office, February 11, 2008
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.
F.
Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents required under this
Stipulation, except for payments pursuant to Section VIII.A ("Penalty Payment")
of this
Stipulation shall be submitted as follows:
As to the Complainant
c
George D. Theophilos
Assistant Attorney General
Environmental Bureau
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
.James Day
~
Assistant Counsel
Illinois Environmental Protection Agency
500 South Second Street
Springfield, Illinois 62702
As to the Respondent
Cary
M. Pumphrey, Esq.
Gardiner, Koch
&
Weisberg
53 W. Jackson Blvd, Suite 950
Chicago, Illinois 60604
H.
Enforcement of Board Order
1.
Upon the entry of the Board's Order approvmg 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, February 11, 2008
2.
First Country 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 First Country 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.
13
Electronic Filing - Received, Clerk's Office, February 11, 2008
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:
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
~"Bt-~~
ROBER
A.
MESS A
Chief Legal Counsel
FIRST COUNTRY HOMES, LLC
BY:
Name:
---------
Title:.
_
14
DATE:
_
Electronic Filing - Received, Clerk's Office, February 11, 2008
...
\. '
WHEREFORE, Complainant and Respondent request that the Board adopt and
accept the foregoing StipllJation and
I>roposal for Settlement as written.
PEOPLE
OF THE STATE OF ILLINOIS,
. LISA MADIGAN
Attorney General
State
of TIlinois
MATTHEW J. DUNN, Chief
Environmental
Enforcem~t/
Asbestos Litigation Division
BY;
ROSEMARIE
CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVlRONMENTAL PROTECTION
AGENCY
BY:
ROBERT A. MESSINA
ChiefLegal Counsel
FIRST COUNTRY HOMES, LLC
DATE:,
_
DATE:
--------
B~~
DATE:
tJ5!lJ::1!.fzQ'--
'2'1, 2"""T
~
1':.
~r"'V
...
"",~
Tit1e:_~H.*""
14
Electronic Filing - Received, Clerk's Office, February 11, 2008
---_
..
_- ._._-_._-_
...
_------------------------------------,
CERTIFICATE OF SERVICE
I, George D. Theophilos, an Assistant Attorney General, do certify that I caused to be mailed,
this
11 th day of February, 2008, the foregoing
MOTION FOR RELIEF FROM HEARING
REQUIREMENT
and
STIPULATION AND PROPOSAL FOR SETTLEMENT
to the persons
listed on said Service List by first class mail in a postage pre-paid envelope and depositing same with
the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois 60601.
Electronic Filing - Received, Clerk's Office, February 11, 2008
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