ILLINOIS POLLUTION CONTROL BOARD

February 15,

1996

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

)

PCB96-153

)

(Enforcement -Water and UST)

MP MELROSE PARK ASSOCIATES, LTD,

)

an Illinois Limited Partnership,

)

Respondent.

)

ORDER OF THE BOARD

This matter comes before the Board upon a four-count complaint filed January 8,

1996 by

the Attorney General of the State of Illinois, on behalf of the Illinois Environmcntal Protection

Agency

and

the People of the State ofIllinois, against MP Melrose Park Associates, Ltd., an

Illinois Limited Partnership locatedat

150 North 25th Avenue, Meirose Park, Cook County

Illinois.

The complaint alleges that MP Melrose Park Associates, Ltd. has violated Sections

12(a) and 12(d) of the Environmental Protection Act (Act) (415 ILCS

5/12(a),

5/12(d)), and 35

Ill. Adm. Code 731.160, 731.162(b) and 731.163(a)

and

(b) by

causing or allowing water

pollution, creating awater pollution

hazard and

violation of UST 20-day and 45-day reporting

requirements.

Pursuant to 415 ILCS 5/31(a)(2), the parties filed ajoint motion requesting relief from the

Act’s hearing requirement on January

8, 1996.

The Board published a notice of the waiver on

January

17,

1996;

no objection to the granting of the waiverwas received.

Waiver of hearing is

hereby granted.

The

parties filed a stipulation and settlement agreementon January 8,

1996.

The

stipulation sets forth facts relating to the nature, operations and circumstances surrounding the

claimed violations. MP Melrose Park Associates, Ltd. admits the alleged violations and agrees to

pay a civil penalty oftwenty thousand dollars ($20,000.00).

The

Board finds the settlement agreement acceptable under 35

111. Ada

Code 103.180.

This settlement agreement in no way affects respondent’s responsibility to comply with any

federal, state or local regulations, includingbut not limited to the Act and the Board’s pollution

control regulations.

This opinion constitutes the Board’s findings of fact

and

conclusions of law in this matter.

ORDER

The Board hereby accepts the stipulation and settlement agreement executed by

the People ofthe State of Illinois and MP Melrose Park Associates, Ltd., an

Illinois LimitedPartnership located at 150 North 25th Avenue, Meirose Park,

Cook County Illinois.

The stipulation and settlement agreement are incorporated

by reference as though fully

set forth herein.

MP Melrose Park Associates, Ltd. shall pay the sum of

twenty

thousand dollars

($20,000.00) within 30 days ofthe date of this order.

Such payment shall be

made by certified check or money order payable to the Treasurer of the State of

Illinois, designated to the Environmental Protection Trust Fund, and shall be sent

by first class mail to:

Illinois Environmental Protection Agency

Fiscal Services Division

2200 Churchill Road

P.O. Box

19276

Springfield, IL

62794-9276

The certified check or money order shall clearly indicate on its face, MP Melrose

Park Associates, Ltd.

‘s federal employer identification number 36-3638662 and

that payment is directed to the Environmental Protection Trust Fund.

Any such penalty not paid within the time prescribed shall incur interest at the

rate set forth in subsection (a) of Section

1003

of the Illinois Income Tax Act,

(35

ILCS 5/1003), as now or hereafter amended, from the date paymentis due until

the date payment is received.

Interest shall not accrue during the pendency of an

appeal during which payment of the penalty has been stayed.

MP Mclrose Park Associates, Ltd. shall

cease and

desist from the alleged

violations.

IT IS

SO ORDERED.

Section 41

of the Act

(415

ILCS

5/41

(1994)) provides forthe appeal of final Board

orders within

days of the date of service of this order.

The

Rules of

the

Supreme Court of

Illinois establish filing requirements.

(See also 35

Ill. Adm. Code

101.246 “Motions for

Reconsideration.”)

I, Dorothy M.

Gunn,

Clerk of the 1llinoi~ ollution Control Board, hereby certify that the

above order was adopted on the /~~‘day

1996, by

avote of

7-0

Dorothy M.

Illinois

Clerk

Control Board

BEFORE

 TI-IF. TT1T1INOIS

 POTITIIJTTON CONTROL ECAPh

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

v.

)

 PCB 96-

i~3

(Enforcement)

MP MELROSE PARK ASSOCIATES, LTD.,

an Illinois Limited Partnership,

Respondent.

STIPULATION AND. PROPOSAL FOR

SE~TLEMEN~

Complainant,

 PEOPLE OF THE STATE OF ILLINOIS, by JAMES E.

RYAN,

 Attorney General of the State of Illinois,

 at the request

of the Illinois Environmental Protection Agency, and Respondent,

MP MELROSE PARK ASSOCIATES,

 LTD.,

 an Illinois Limited

Partnership,

 (“Meirose Park”)

 do hereby agree to this Stipulation

and Proposal for Settlement

 (this

 “Agreement’t).

 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 full hearing was held.

The

parties further stipulate that this statement of facts is made

and agreed upon for purposes of

 settleitteuL only

and

that neither

the fact that

 a party has entered into this Agreement,

 nor any of

the facts

 stipulated herein,

 shall be introduced into evidence in

this or any other proceeding except

to enforce the terms of this

Agreement.

 Notwithstanding the previous sentence,

 this Agreement

‘I

and

any

Illinois

Pollution

Control

Board

(“Board”)

orc~er

accepting this Agreement may be used in any future enforcement

action as evidence of a past adjudication of violation of the

Illinois Environmental Protection Act

 (“Act”) for purposes of

Section 42 (h)

 of the Act,

 415 ILCS 5/42 (h) (1994).

 The Agreement

shall be null and void unless the Board approves and disposes of

this matter on each and every one of the terms and conditions of

the settlement set forth herein.

~tTRISDICTION

The Board has jurisdiction of the subject matter herein and

of the parties consenting hereto pursuant to the Act, 415 ILCS

5/1

seq.

 (1994)

II.

AUTHORIZATION

The undersigned representative

 for each party certifies that

he or she is

 fully authorized by

the

party whom he or she

represents

 to enter into the terms

 of this Agreement and to

legally bind them to it.

III.

APPLICABILITY

This Agreement shall apply to and be binding upon the

Complainant and Respondent, and any officer, partner,

 aqent and

employee or servant of Respondent,

 as well as Respondent’s

successors and assigns. Respondent shall not raise as a defense

to any enforcement action taken pursuant to this Agreement the

failure of its officers,

 partners,

 agents,

 servants or employees

to take such action as shall be required to comply with the

provisions of this Agreement.

Iv.

STATEMENT OF

FACTS

Parties

1.

 The Attorney General of the State of Illinois brings

this action on his own motion and at the request of the Illinois

Environmental Protection Agency (“Agency”), and pursuant to the

statutory authority vested in him under Section 31 of the Act,

415 ILCS 5/31

 (1994)

2.

 The Agency is an administrative agency in the executive

branch of the State government of Illinois, created pursuant to

Section 4 of the Act,

 415 ILCS 5/4

 (1994), and is charged,

 inter

alia,

 with the duty

 enforcing the

Act.

3.

 At all times relevant to this Agreement,

 Respondent was

an Illinois limited partnership.

4.

 Respondent owned and/or operated two

(2)

 underground

storage tanks

 (“USTs”)

 located at 150 North 25th Avenue, Meirose

3

provides

No person shall:

a.

 Cause or threaten or allow the discharge

of any contaminants into the environment

in any State so as to cause or tend to

cause water pollution in Illinois, either

alone or in combination with matter from

other sources, or so as to violate

regulations or standards adopted by the

Pollution Control Board under the Act.

2.

 On January

8,

 1992,

 the Respondent’s consultant,

Environmental Construction Company, notified the Illinois

Emergency

Services and Disaster

Agency that diesel fuel had

leaked from the USTs.

 On the same day, the USTs were removed.

3.

 On or before January

8,

 1992,

 diesel fuel was released

from the USTs into the soil and may have entered the underlying

groundwater at or in the vicinity of the tJSTs.

Park,

 Cook County,

Ill

inois

 (“Site”), which were removed on

January

8,

 1992.

B.

 Facility Description

1.

 At the Site, Respondent had two

 (2) ten thousand

(10,000)

 gallon diesel fuel USTs.

2.

 At least ten percent

 (10)

 of the volume and associated

piping of each of the USTs was located beneath the ground.

C.

 ~l1eaed ~

Water Pollution

1.

 Section 12(a)

 of the Act,

 415 ILCS 5/12(a) (1994),

 section

4.56

cue

 Act,

4.1.5

J.bLS

5/i-Sb

çs~3~J4),

contains the following definition:

“CONTAMINANT”

 is any solid,

 liquid,

or

gaseous matter,

 any odor,

 or any form of

energy,

 from whatever source.

5.

 Diesel fuel is a “contaminant” as that term is defined

in Section 3.56 of the Act.

6.

 Section 3.56 of the Act,

 415 ILCS 5/3.56(1994),

contains the following definition:

“WATERS” means all accumulations of water,

surface and underground, natural and

artificial, public and private, or parts

thereof, which are wholly or partially

within, flow through, or border upon this

State.

7.

 The groundwater at and in the vicinity of the TJSTs is a

“water”

 of the State of Illinois,

 as that term is defined in

Section

3.56

the

Act.

8.

 The discharge of diesel fuel from the USTs into the

soil

and

possibly

the

groundwater

the

vicinity

the

USTs constituted a discharge of a contaminant into the

environment so as to cause or tend to cause water pollution in

Illinois.

9.

 Respondent discharged contaminants into the environment

so as to cause or tend to cause water pollution in Illinois in

violation

 of Section

 12(a)

 of the Act,

 415 ILCO 5/12(a) (1994)

1.

 Section 12 (d) of the Act,

 415 ILCS 5/12 (d) (1994),

provides:

person

~ha11:

d.

 Deposit any contaminants upon the land

 in such a place and manner so as to

create a water pollution hazard.

2.

 The discharge of diesel fuel from the USTs into the

soils and possibly the groundwater at or in the vicinity of the

tJSTs constituted a deposit of a contaminant upon the land in such

a place and manner so as to create a water pollution hazard.

3.

 Respondent deposited contaminants upon the land in such

a place and manner so as to create a water pollution hazard in

violation of Section 12 (d)

 of the Act,

 415 ILCS 5/12 (d) (1994)

Violation of UST Release 20-day Reporting Requirements

1.

 On January

8,

 1992,

 the release of diesel fuel from the

UST5 was confirmed.

2.

 Section 731.162 of the Board Underground Storage Tank

Regulations,

 35 Ill. Adm. Code 731.162, which were in effect at

the time of the release, provides:

a.

 Owners and operators shall perform the following

abatement measures:

(1)

 Remove as much of the regulated substance

from the UST system as is necessary to

prevent further release to the environment~

(2)

 Visually inspect any aboveground releases or

exposed below ground releases and prevent

6

turtrier

migration

the

released

substance

into surrounding soils and groundwater;

(3)

 Continue to monitor and mitigate

any

additional fire and safety hazards posed by

vapors or free product that have migrated

from the UST excavation zone and entered into

substance structures

 (such as sewers or

basements);

(4)

 Remedy hazards posed by contaminated soils

that are excavated or exposed as

 a result of

release confirmation,

 site investigation,

abatement or corrective action activities.

If these remedies include treatment or

disposal of soils, the owner and operator

shall comply with 35

 Ill. Adm.

 Code 722,

 724,

725,

 and 807 through 815.

(5)

 Measure for the presence of a release where

contamination is most likely to be present at

the UST site,

 unless the presence and

source

of the release have been confirmed in

accordance with the site check or the closure

site assessment.

 In selecting sample

types,

sample locations and measurement methods, the

owner and operator shall consider the nature

of the stored substance, the type of

backfill, depth to groundwater and other

factors as appropriate for identifying the

presence and source of the release; and

(6)

 Investigate to determine the possible

presence of free product, and begin free

product removal as soon as practicable and in

accordance with Section 731.164.

b.

 Within 20 days after release confirmation,

 owners

and operators shall submit a report to the Agency,

summarizing the initial abatement steps taken

under subsection

 (a),

 above, and any resulting

information or data.

3.

The

Agency received the Respondent’s 20-day initial

abatement report on May 26,

 1992,

 more than 100 days after

7

conrirmation of the release.

4.

 Respondent failed to submit a report summarizing the

initial steps taken and any resulting information or data

collected within the time

 frame prescribed

 in Section 731.162(b)

of

the Board Underground Storage Tank Regulations,

35

 111.

 Adm.

Code 731.162(b),

 in violation of that regulation.

5.

 Section 731.160 of the Board Underground Storage Tank

Regulations,

35

 Ill.

 Adm. Code 731.160,

 which were

in

effect at

the time of the release, provides:

Owners and operators of petroleum or

hazardous substance UST systems must,

in

response to a confirmed release from the UST

system, comply with the requiremento

of

this

Subpart except for TJSTs excluded under

Section 731.110(b)

 and UST systems subject to

RCPA corrective action requirements under 35

Ill. Adm.

 Code 724.200,

 724.296,

 725.296 or

725.Subpart G.

Respondent

violated

Section

 731.160 of the Board

Underground Storage Tank Regulations,

 35 Ill. Adm. Code 731.160,

due to its failure to comply with Section 731.162(b)

 of the

Underground Storage Tank Regulations,

 35 Ill.

 Adrn.

 Code

731.162(b)

Violation of UST Release 45-Day Reporting Requirements

1.

 Section 731.163 of the Board Underground Storage Tank

Regulations,

35

 Iii.

 Adm. Code 731.163,

 which were in effect at

the time of the release,

 provides:

a.

 Owners and operators shall assemble information

8

about the site and the nature of the release,

including information gained while confirming the

release or completing the initial abatement

measures in Section 731.160 and Section 731.161.

This information must include, but is not

necessarily limited to the following:

(1)

 Data on the nature and estimated quantity of

release;

(2)

 Data from available sources or site

investigations concerning the following

factors: surrounding populations, water

quality,

 use and approximate locations of

wells potentially affected by the release,

subsurface soil conditions,

 locations of

subsurface sewers, climatological conditions

and land use;

(3)

 Results of the site check required under

Section 731.162(a) (5); and

(4)

 Results of the free product investigations

required under Section 731.162(a) (6),

 to be

used by owners and operators to determine

whether free product must be recovered under

Section 731.164.

b.

 Within 45 days after confirmation of the release,

owners and operators shall submit the information

collected in compliance with subsection

(a)

 to the

Agency,

 in a manner that demonstrates its

applicability and technical adequacy.

2.

 The Agency received the Respondent’s 45-day report on

May 26,

 1992,

 more than 100 days after confirmation of the

release.

3.

June

15,

 1992,

 the Agency notified the Respondent

that the 45-day report was deficient.

4.

 On November 10,

 1992, January 20,

 1993, and August 31,

1993,

 the Respondent submitted the additional information

rcquested by the Agency.

5.

 Respondent failed to submit to the Agency information

collected in compliance with subsection

(a)

 of 35 Ill. Adm. Code

731.163 within the timc frame prescribed in subsecLion

(b)

 of 35

Ill. Adm. Code 731.163,

 in violation of that regulation.

By

violating 35 Ill.

 Adm.

 Code 731.163(b), Respondent also violated

Section 731.160 of the Board Underground Storage Tank

Regulations,

35

 Ill. Adm.

 Code 731.160.

‘7.

IMPACT ON THE PUBLIC RESULTING FROM NON-COMPLIANCE

Section 33(c)

 of the

Act,

 415 TLCS 5/33(c) (1994), provides:

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:

(i)

 the character and degree of injury to,

or

interference with the protection of the health, general

welfare and physical property of the people;

(ii)

 the social and economic value of the pollution

source;

(iii)

 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;

(iv)

 the technical practicability and economic

reasonableness of reducing or eliminating the emissions,

discharges or deposits resulting from such pollution

source;

and

(v)

 any subsequent compliance.

In response to

these factors,

 the parties state the following;

1.

 Impact to the public

resulting from Respondent’s

noncompliance was that the Agency and the public were not timely

provided with information that

 is important to the control

 of water

and land pollution in the State of Illinois.

 The Respondent removed

the UST5 in the presence of the Office of the Illinois State Fire

Marshal and timely reported the release of petroleum; however,

the

20- and 45-day reporting requirements were not timely satisfied.

Such reports are an important method available for the State to

identify and control possible pollution from leaking underground

storage tanks.

2.

 The Site is of social and economic benefit.

3.

 The Site is suitable for the area in which it is located.

4.

 Respondent maintains that

 it could not control the fact

that its UST experienced a release of petroleum in 1992; however,

complying with the reporting requirements of the Act and the Board

Regulations after the release is both technically practicable and

economically reasonable.

5.

 Respondent did subsequently comply with the Act and the

Board Regulations by filing all necessary reports.

 Respondent also

engaged a registered Professional ExLgineer of the State of Illinois

to conduct a health-based risk assessment for the Site. The

assessment demonstrated that the USTs were closed in a manner that

is protective of human health and the environment and that Site

conditions

not present an unacceptable

 risk.

VI.

CONSIDERATION OF SECTION 42(h)

 FACTORS

Section 42(h)

 of the Act, 415 ILCS 5/42(h) (1994),

 provides:

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:

(i)

 the duration and gravity of the violation;

(ii)

 the presence or absence of due diligence on the part

of the violator in attempting to comply with requirements

of this Act and regulations thereunder or to secure

relief therefrom as provided by this Act;

(iii)

 any economic benefits accrued by the violator

because of delay in compliance with requirements;

(iv)

 the amount of monetary penalty which will serve to

deter further violations by the violator and to otherwise

aid in enhancing voluntary compliance with this Act by

the violator and other persons similarly subject to the

Act; and

(v)

 the number, proximity in time,

 and gravity of

previously adjudicated violations of this Act by the

violator.

In response to these factors,

 the parties state:

1.

 The duration of the

20-day reporting violation was 119

days.

 The duration of the 45-day reporting violation was 95 days.

2.

 Respondent had requested the

assistance of its

environmental consultant to respond to the Agency’s requests for

additional information on the UST removal; however, the information

provided to the Agency was nonresponsive.

 Respondent ultimately

responded to Agency requests for the complete 20-day and 45-day

reports.

 RespondenL

also engaged

 regisLered Professional Engineer

of the State of Illinois to conduct a health-based risk assessment

at the Site.

 The assessment demonstrated that the USTs were closed

in a manner that is protective of human health and the environment

and that Site conditions do not present an unacceptable risk.

3.

 Respondent maintains that

 it did not realize an economic

benefit from its noncompliance.

 Complainant agrees that any

economic benefit realized would be nominal.

4.

 Complainant has determined that a penalty of Twenty

Thousand Dollars

 ($20,000.00)

 will serve to deter further violations

and aid in future voluntary compliance with the Act and Board

regulations.

5.

 Respondent has no previously adjudicated violations of

the Act.

VII.

TERMS OF

SETTLEMENT

1.

 The Respondent shall pay a penalty in the sum of twenty

thousand dollars

 ($20,000.00) within thirty

 (30) days of the date of

entry of this Agreement.

 The penalty described in this Agreement

shall be paid by certified check to the Treasurer of the State of

13

Illinois,

designated

the

Illinois

Environmental

Protection

Trust

Fund and submitted to:

Illinois Environmental Protection Agency

Fiscal Services Section

2200 Churchill Road

P.O. Box 19276

Springfield,

 IL 62794-9276

The name and number of the case and Respondents’

 Federal Employer

Identification Number

 (FEIN), #36-36386~, shall appear on the

check.

2.

 Respondents shall cease and desist from violations of the

Act, any and all of the regulations found in

 35 Ill. Adm. Code,

Subtitles A through

VIII.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Agreement in no way affects the responsibility of the

Respondent to comply with any federal,

 state or local regulations,

including but not limited to the Act,

415

 ILCS 5/1

 (1994)

et

 seq.,

and the Board regulations,

 35 Iii. Adm.

 Code Subtitles A through H.

Ix.

RIGHT OF ENTRY

In addition to any other authority,

 the Agency,

its

employees and representatives, and the Illinois Attorney General,

his agents and representatives,

 shall have right

of entry to the

Site

at

all

reasonable

times,

for

the

purposes

conducting

inspections.

 In conducting any inspection of the Site,

the

Agency,

 its employees and representatives, and the Attorney

General,

 his agents and representatives, may take any photographs

or samples as they deem necessary in order to conduct their

inspection.

x.

RELEASE

FROM

LIABILITY

In consideration of Respondent’s payment of the penalty

specified herein,

 and commitment to refrain from future violation

of the Act,

 the Agency releases, waives and discharges Respondent

from any further liability or penalties for violations of the Act

which are the subject matter of the Complaint.

 Nothing in this

Agreement shall be construed as a waiver by the Attorney General

or the Agency of the right to redress future violations,

 if any,

or obtain penalties with respect thereto.

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,

JAMES E~ RYAN,

Attorney General of the

State of Illinois

MATTHEW J.

 DUNN,

 Chief

Environmental Enforcement Division

BY:

Environmental Bureau

Assistant Attorney General

PROTECTION AGENCY

MP

ENTERED

DATE:

p.f~c~4r

DATE:

DATE: /J-~,2?

-ir

JUDGE

ILL.

BY:

BY:

MP

 PARK

ASSOCIATES,

 LTD.

mm a:melrose6.doc