BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
)
MONTALBANO BUILDERS, INC.,
)
An
Illinois corporation,
)
)
Respondent.
)
PCB No. 09-30
(Enforcement - Water)
NOTICE OF FILING
TO:
Glen C. Sechen
Attorney at Law
13909 Laque Drive
Cedar Lake, IN 46303
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Ste. 11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk of the
Illinois Pollution Control Board an original and nine copies
of the Stipulation and Proposal for
Settlement, an Agreed Motion for Relief from the Hearing Requirement, Notice
of Filing and a
Certificate
of Service, a copy of which is attached herewith and served upon you.
Electronic Filing - Received, Clerk's Office, October 5, 2009
-
BY:
DATE: October
5,2009
--------- --------------------------,
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
~~f4~~
ZEMEHERET BEREKET-AB
Environmental Bureau
Assistant Attorney General
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-3816
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
)
Complainant,
)
)
vs.
)
)
MONTALBANO BUILDERS, INC.,
)
)
Respondent.
)
PCB No. 09-30
(Enforcement - Water)
AGREED MOTION TO REQUEST RELIEF
FROM THE HEARING REQUIREMENT
In
support of this Motion, the parties state as follows:
1.
Today, the People of the State of Illinois, filed a Stipulation and Proposal for
Settlement, with the Illinois Pollution Control Board.
2.
Section 31 (c )(2) of the Illinois Environmental Protection Act, ("Act"), 415 ILCS
5/31 (c )(2)(2008) 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 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 (1) ....
3.
Complainant and Respondent agree that a formal hearing
is not necessary to conclude this matter and wish to avail themselves
of Section 31 (c )(2) of the
Act, 415 ILCS 5/31 (c )(2)(2008).
Electronic Filing - Received, Clerk's Office, October 5, 2009
WHEREFORE, Complainant and Respondent request relief from the hearing requirement
pursuant to Section 31(c)(2)
of the Act, 415 ILCS 5/31(c)(2)(2008).
BY:
DATE: October
5,2009
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
j1~~,tt£
ZEMEHERET BEREKET-AB
Environmental Bureau
Assistant Attorney General
69 W. Washington
St., Suite 1800
Chicago, Illinois 60602
(312) 814-3816
G:\Environmental Enforcement\Z BEREKET-AB\Montalbano Builders, Inc.\Agreed Mot to Req Relief IO--5-09.doc
Electronic Filing - Received, Clerk's Office, October 5, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
MONTALBANO BUILDERS, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
PCB NO. 09-30
(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 MONTALBANO BUILDERS, INC., an Illinois corporation ("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.
(2008), and the Board 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 November 6, 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 (2008),
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 (2008).
3.
At all times relevant to the Complaint, Respondent was and is an Illinois
corporation in good standing that is authorized to transact business in the State
of Illinois.
4.
At all times relevant to the Complaint, Respondent was engaged in the
development
of a 393 lot residential subdivision with single family homes known as the
Huntington Ridge subdivision located on the southwest comer
of Harvard Hills and Crowley
Road in Harvard, McHenry County, Illinois
(USite").
5.
On June 5, 2006, Montalbano submitted to the Illinois EPA a notice of intent
(UNOI") for coverage under the NPDES stormwater permit for the Site. The Site is 193 acres in
size and the receiving stream for stormwater runoff from the Site as listed in Montalbano's NOI
is Mokeler Creek. However, adjacent
to the Site there is a wetland flood plain which discharges
to Lawrence Creek.
6.
On July 6, 2006, the Illinois EPA granted Montalbano coverage under the NPDES
stormwater permit for stormwater discharges associated with construction activity.
7.
On April 17, 2007, the McHenry County Soil and Water Conservation District
(UMCSWCD") inspected the Site to determine the effectiveness
of erosion and sediment control
measures in preventing water pollution. During the inspection MCSWCD observed that
unstabilized and inadequate erosion controls over portions
of the Site had allowed silt-laden
runoff to threaten wetland area just offsite the development.
2
8.
The MCSWCD also noted a portable diesel fuel tank located at the Site which had
no secondary spill containment, and evidence
of spilled fuel was found on the ground near the
tank.
9.
On May 9,2007, the Illinois EPA conducted a site inspection to review the
erosion control measures employed at the Site. The Illinois EPA's inspection was prompted by
reports received from the MCSWCD.
10.
During the May 9,2007, Illinois EPA inspection, the inspector observed that
disturbed areas where no construction activity had been occurring for over three weeks did not
have temporary stabilization in place.
11.
The inspector also observed evidence of sediments leaving the Site and entering
the adjacent wetland whose water eventually discharges into Lawrence Creek. Some silt fences
were installed in low-lying areas
of the Site and were partially under water accumulated in those
areas.
12.
The inspector also observed that the final stormwater detention basin was not
stabilized and sediments were observed in the final manhole prior
to the discharge point.
13.
The Illinois EPA inspector also observed that the diesel fuel storage tank found by
the MCSWCD during its April 17, 2007 inspection, was not properly protected with dykes,
curbing or some other form of containment for spills. No spill kits were noted and storm sewer
inlets were not designed to contain fuel spills.
14.
On June 19,2007, the Illinois EPA sent to Montalbano a Violation Notice ("YN")
pursuant to Section 31(a)(I)
of the Act, 415 ILCS 5/31 (a)(1) (2008).
3
15.
On July 25,2007, Montalbano responded to the VN and proposed its Compliance
Commitment Agreement ("CCA").
16.
On August 21,2007 the Illinois EPA rejected Montalbano's CCA.
17.
On October 18, 2007, the Illinois EPA sent to Montalbano a Notice ofIntent to
Pursue Legal Action pursuant to Section 31(b)
of the Act, 415 ILCS 5/31(b) (2008).
18.
On November 9,2007, the Illinois EPA met with Montalbano to discuss the
violations.
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:
Countll:
Count
Ill:
Cause, Threaten or Allow Water Pollution, in violation of Section
12(a)
of the Act, 415 ILCS 5/12(a) (2008).
Creating a Water Pollution Hazard, in violation
of Section 12( d) of
the Act, 415 ILCS 5/12(d) (2008).
Failure
to Comply With the Terms and Conditions of the NPDES
Permit, in violation
of Section 12(f) ofthe Act, 415 ILCS 5/12(f)
(2008), and
35 Ill. Adm. Code 309.102(a).
C.
Non-Admission
of Violations
The Respondent neither admits nor denies the violations alleged in the Complaint filed in
this matter and referenced herein.
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
4
Electronic Filing - Received, Clerk's Office, October 5, 2009
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 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 (2008).
The Respondent shall notify each contractor to be retained to perform work required in
this Stipulation
of each of the requirements of this Stipulation relevant to the activities to be
performed
by that contractor, including all relevant work schedules and reporting deadlines, and
shall provide a copy
of this Stipulation to each contractor already retained no later than thirty
(30) calendar days after the date
of entry of this Stipulation. In addition, the Respondent shall
provide copies
of all schedules for implementation of the provisions of this Stipulation to the
prime vendor(s) supplying the control technology systems and other equipment required
by this
Stipulation.
III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c)(2008), 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;
5
Electronic Filing - Received, Clerk's Office, October 5, 2009
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 to this Stipulation state the following:
1.
Stormwater run-off from the Site posed a potential threat of water
pollution
to waters of the State.
2.
The social and economic benefit from the construction of the residential
subdivision is not at issue.
3.
Construction of the subdivision was suitable for the area.
4.
Complying with the requirements of the Act, Board Regulations, and
permit conditions was both technically practicable and economically reasonable.
5.
. Respondent is in the process of providing better site stabilization and
erosion controls.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2008), 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.
th.e 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
6
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, Complainant states as follows:
1.
The violations at the Site were first reported on April 17, 2007 and continued for
several months until November
8,2007. Evidence of silt-laden run-off was noted in the adjacent
wetland area and the stormwater retention basin discharge manhole.
2.
Respondent addressed most
of the initial soil stabilization issues at the Site
between the Illinois EPA's
May 9 and November 8, 2007 inspections.
3.
Economic benefits accrued
by Respondent are believed to be minimal and are
accounted for in the $10,000.00 penalty agreed herein.
7
4.
Complainant and the Illinois EPA have determined, based upon the specific facts
of this matter that a penalty ofTen Thousand Dollars ($10,000.00) will serve to deter further
violations
of the Act and Board Regulations by Respondent and aid in future voluntary
compliance with the Act and Board regulations.
5.
To Complainant's and the Illinois EPA'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.
v.
TERMS OF SETTLEMENT
A.
Penalty Payment
The Respondent shall pay a civil penalty in the sum ofTen Thousand Dollars
($10,000.00) 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 (UEPTF").
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
8
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:
Zemeheret Bereket-Ab
Environmental Bureau
Illinois Attorney General's
Office
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
C.
Stipulated Penalties, Interest and Default
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.
D.
Future Compliance
1.
This Stipulation in no way affect 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.
2.
The 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's payment of the Ten Thousand Dollars $10,000.00
penalty, the Respondent's completion
of compliance measures described in Section V.D. herein,
and any specified costs and accrued interest, and upon the Board's approval
of this Stipulation,
9
the Complainant release, waive and discharge the Respondent from any further liability or
penalties for the violations
of the Act and Board Regulations that were the subject matter ofthe
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 6, 2008. 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 (2008), or entity other than the
Respondent.
F.
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.
10
Electronic Filing - Received, Clerk's Office, October 5, 2009
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.
This Stipulation and Proposal for Settlement may be signed in counterparts.
WHEREFORE, the parties to this Stipulation request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
[THE REMINDER
OF THIS PAGE IS INTENTIONAL LEFT BLANK]
11
Electronic Filing - Received, Clerk's Office, October 5, 2009
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
Envir
ental Bureau
Assistant Attorney General
DATE: '1
~(5f
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~
MONTALBANO BUILDERS, INC.
BY:
Name:
___________ _
Title:
-------------
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS
P. SCOTT, Director
Illinois Environmental Protection Agency
DATE:.--,q--,-r-=-..:.~
l--\-( __
B'1-+--__
DATE: ____________ _
G:\Environmental Enforcement\Z BEREKET-AB\MONTALBANO\Pleading\Stipulation revised 9-2-09.doc
12
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
DATE:
____________________ __
MONTALBANO BUILDERS, INC.
BY:
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Name:
fltf}t4lvyH.c,Jt~/1L,gt1A/O
Title:
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e
S
/[J
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ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
________________________ __
JOHN J. KIM
Chief Legal Counsel
DATE:
______________________ _
DATE:
______________________ _
G:\Environmental Enforcement\Z BEREKET-AB\MONTALBANO\Pleading'Stipulation revised 9-2-09.doc
12
CERTIFICATE OF SERVICE
I, ZEMEHERET BEREKET -AB, an Assistant Attorney General, do certify that I caused
to be served on this 5
th
day of October, 2009, the foregoing Notice of Filing, a Stipulation and
Proposal for Settlement, and an Agreed Motion for Relief from the Hearing Requirement, upon
the persons listed on said Notice
by placing same in an envelope bearing sufficient postage with
the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois.
G:\Environmental Enforcement\Z BEREKET-AB\vILLAGE OF Montalbano Builders, Inc.\NOF&Cert 9-28-09.Doc