BEFORE THE ILLINOIS POLLUTION

CONTROL BOA~

c

E ~V E D

CLERK’S OFFICE

PEOPLE OF THE STATE OF

ILLINOIS

Complainant,

V.

YOUSSI REAL ESTATE A~D

DEVELOPMENT, ll’4C., an Illinois

Corporation,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

MAR

102005

STATE OF ILLINOIS

Pollution Control Board

NOTICE OFFILING~

To:

See attached Service List

PLEASE TAKE NOTICE that on the

10th day ofMarch,

2005,

the People ofthe State of

Illinois, filedwith the Illinois Pollution Control Board, a

Stipulation and Proposal for Settlement,

true and correct copies ofwhich are attached hereto and is hereby served upon you.

DATE:

March 10, 2005

By:

PEOPLE OF THE STATE OF ILLINOIS,

ex

reL

LISA MADIGAN, Attorney General

Environmental Bureau

188 West Randolph Street,

20th

Fl.

Chicago, IL 60601

(312) 814-6986

No. 05-60

(Enforcement

-

Water)

Assistant Attorney General

THIS FILING

IS SUBMITTED ON RECYCLED

PAPER

---

SERVICE LIST

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

Mr. Charles

Gunnarson, Esq.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Mr. Patrick Hayes, Esq.

Guyer

& Enichen

26OlReid Farm Road

Rockford, IL

61114

---

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARRECEIVED~

CLERK’SOFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

MAR

102005

STATE OF ILLINOIS

Complainant,

)

Pollution

Control Board

PCB 05-60

v.

(Enforcement

-

Water)

YOUSSI REAL ESTATE AND

DEVELOPMENT,

INC.,

an Illinois

)

Corporation,

~

Respondent.

STIPULATION

AI’~DPROPOSAL

FOR SETTLEMENT

Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois,

the Illinois

Environmental Protection Agenc~T (“Illinois EPA”),

and YOUSSI REAL

ESTATE AND DEVELOPMENT,

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.

The

parties agree that the statement~bffácts~cbntainedherein

represents a fair summary of the evidence and testimony which

would be introduced by the parties if a~hearingwere held.

The

parties further stipulate that this statement of facts is made

and agreed upon for purposes of settlement only and that neither

1

---

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,

Respondent 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.

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.

(2002)

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.

2

---

III.

STATEMENT OF FACTS

A.

Parties

1.

On September 27,

2004,

a Complaint was filed on behalf

of thePeople

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(2002),

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

(2002)

.

3.

At all times relevant to the Complaint, Respondent was

and is an Illinois corporation that is authorized to transact

business in the State of Illinois.

B.

Site Description

1.

At all times relevant to the Complaint,

Respondent was

a developer of residential homes at the Prairie Meadow

subdivision,

a 72.2 acre parcel of land located at the corner of

Dawson Lake Road and Caledonia Road in the Village of Tirnberlane,

Boone County,

Illinois

(“site”).

2.

Respondent built Phase

II of the site

(“Phase

II”),

a

28 acre parcel where lot sizes average

1.3 acres each,

beginning

sometime in 2003 until mid-2004,

on dates better known to

3

---

Respondent.

3.

Since 2003,

at least one stormwater retention pond was

located

at. the Site to allow stormwater settling prior to

discharge from Phase II.

Any overflow from the retention pond

would

flow south approximately one mile to the headwaters of

Beaver Creek which is a tributary to the Kishwaukee River.

4.

During development and construction activities

at Phase

II from 2003 until mid-2004,

Respondent performed or directed

affairs which disturbed and moved topsoil.

5.

During development and construction activities

at Phase

II from 2003 until mid-2004,

the site was not covered by a

National Pollutant Discharge Elimination System

(“NPDES”)

stormwater discharge permit.

.

C.

Allegations of

Non-Compliance

Complainant contends that the Respondent has violated the

following provisions

of the Act and Board regulations:

Count

I:

Failure to secure a NPDES stormwater discharge

permit for Phase II construction activities,

in

violation of Section 12(f)

of the Act,

415 ILCS

5/12(f)

(2002)

and Section 309.103 of the

Pollution Control Board’s regulations,

35

Ill.

Adm. Code 309.103.

4

---

D.

‘Admission of Violations

The Respondent admits.to the violation alleged in the

Complaint filed in this matter and referenced within Section

III.C herein.

E.

Compliance Activities to Date

Respondent subsequently submitted a Notice of Intent

(“NOI”)

for coverage under the general NPDES stormwater discharge permit

for

construction

and,

development

activities

at

the

Site.

IV.

APPLICABILITY

This

Stipulation

shall

apply

to

and

be

binding

upon

the

Complainant and the Respondent,

and any officer,

director,

agent,

or

employee

of

the

Respondent,

as

well

as

any

successors

or

assigns of the Respondent.

The Respondent shall not raise as a

defense

to

any

enforcement

action

taken

pursuant

to

this

Stipulation

the

failure

of

any

of

its

officers,’

directors,

agents,

employees or successors or assigns

to take such action as

shall be required to comply with the provisions of this

Stipulation.

V.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This Stipulation in no way affects the responsibilities of

the Respondent to comply with any other federal,

state or local

S

---

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) (2002)

,

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

environment

was

threatened

and

the

Illinois

EPA’s

information gathering responsibilities were hindered by the

Respondent’ s violations.

6

---

2.

There

is social and economic benefit to the site.

3.

Operation of the site was suitable for the area in

which it ‘occurred.

4.

Obtaining a permit prior to construction at the site

and compliance with its terms was both technically practicable

and economically reasonable.

5.

Respondent has subsequently complied with the Act and

the Board Regulations

-

,.

VII. CONSIDERATION OF SECTION 42(h)

FACTORS

Section 42 (h)

of the Act,

415 ILCS 5/42 (h) (2002)

,

provides

as follows:

In

determining

the

appropriate

civil

penalty

to

be

imposed under

.

.

.

thisSection,

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

7

---

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,

the parties state as follows:

1.

The Respondent failed to obtain coverage under the

general NPDES stormwater permit for construction site activities

prior to beginning construction activities at the site.

The

violations began sometime in 2003,

and were resolved in mid-2004.

2.

Respondent was diligent in attempting to come back into

compliance with the Act, and Board regulations, once the Illinois

EPA notified it of its noncompliance.

3.

Respondent failed to secure the necessary NPDES permit

to conduct construction activities at Phase II.

Respondent

obtained a minimal economic benefit as a result of the delay in

obtaining this NPDES

Permit.

The $5,000.00 penalty herein

recovers that economic benefit.

8

---

4.

Complainant

has

determined,’based

upon

the

specific

facts of this matter,

that

a penalty of five thousand dollars

($5,000.00) 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.

A.

Penalty Payment

1.

The

Respondent

shall

pay

a

civil

penalty

in

the

sum

five

thousand

dollars

($5,000.00)

within

thirty

(30)

days

from

the date the Board adopts and accepts this Stipulation.

The

Respondent stipulates that payment has been’ tendered to

Respondent’s attorney of record in this matter in a form

acceptable

to

that

attorney.

Further,

Respondent

stipulates

that

said attorney has been directed to make the penalty payment on

behalf

of

Respondent,

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, money order or electronic

funds transfer

payable

to

the

Illinois

EPA

designated

to

the

Illinois

9

---

Environmental

Protection

Trust

Fund.

A

certified

check

or

money

order shall be submitted to:

Illinois

Environmental

Protection

Agency

Fiscal

Services

Section

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

IL 62794-9276

The name and number of the case and Respondent’s Federal Employer

Identification

Number

(FEIN),

36-3673070,

shall

appear

on

the

check.

If

submitting

an

electronic

funds

transfer

to

the

Illinois

EPA,

the

electronic

funds

transfer

shall

be

made

in

accordance

with

specific

instructions

to

be

timely

provided

to

Defendant

prior

to

the

date

of

the

entry

of

the

Consent

Order.

A

copy

of

the

certified

check,

money

order

or

record

of

electronic

funds

transfer

and

any

transmittal

letter

shall

be

sent to:

Joel

J. Sternstein

Assistant

Attorney....~~~nera1

“r

Environmental Bureau

188

W.

Randolph

St.,

20th

Floor

Chicago,

Illinois .60601

Charles

Gunnarson

Assistant Counsel

Illinois

Environmental

Protection

Agency

1021 Ndrth Grand Avenue East

P.O. Box 19276

,

‘

Springfield,

Illinois 62794-9276

2.

Pursuant

to

Section

42(g)

of

the

Act,

415

ILCS

5/42(g)

(2002)’,

interest

shall

accrue

on

any

payment

not

paid

within

the

time

period

prescribed

above

at

the

maximum

rate

allowable

under

10

---

Section

1003(a)

of

the

Illinois

Income

Tax

Act,

35

ILCS

5/1003

(2002)

.

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,

Respondent’s

attorney

may

be

reached

at

the

following

address:

Patrick

W.

Hayes

Guyer & Enichen

2601 Reid Farm Road

Rockford,

IL

61114

4.

In the event of default of this Section VIII.A, 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

promisesand

conditions

contained

in

this

Stipulation,

including

the

Release

11

---

from

Liability

contained

in

Section

VIII.F,

below,

the

Respondent

hereby

agrees

that

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 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 (à)”~and(i)“añdfO~”5’/42(h) (2002)

.

‘~.

Further,

Respondent

agrees

to waive any rights to contest,

in any subsequent enforcement

‘action

or

permit

proceeding,

any

allegations

that

these

alleged

violations

were “àidjtidi6à’?ed.

C.

Cease and Desist

The

Respondent

shall

cease

and

desist

from

future

violations

of the Act and Board Regulations that were the subject matter of

the

Complaint

as

outlined

in

Section

III.C

(“Allegations

of

Non-

Compliance”)

of

this

Stipulation.

D.

Release from Liability

In

consideration

of

the

Respondent’s

payment

of

the

$5,000.00

penalty

and

any

specified

costs

and

accrued

interest,

to Cease”and”Desist~”asconta±nedin~SectionVIII.E and upon the

Pollution

Control

Board’s

acceptance

and

approval

of

the

terms

of

this

Stipulation

and.

Proposal

for

Settlement,

the

Complainant

12

---

releases,

waives

and

discharges

the

Respondent

from

any

further

liability

or

penalties

for

violations

of

the

Act

and

Board

Regulations that were

the’ subject matter of the Complaint herein.

‘.~..~The~release

set forth above does not extend to any matters other

than those expressly specified in Complainant’s Complaint

filed

on September 27,

2004.

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

follow’ing:~-’

a.

criminal liability;

b.

liability

for

future

violation

of

state,

federal,

local,

and common laws and/or regulations;

c.

liability,f

or

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 the

Respondent.

13

---

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

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

Sections VIII.A

(“Penalty Payment”)

an’d C

(“Stipulated

Penalties”)

of this Stipulation shall be submitted as follows::

As to the Complainant

Joel Sternstein

Assistant Attorney General

(or other designee)

Environmental Bureau

188 W. Randolph St.,

20th

Floor

Chicago, Illinois 60601

Charles Gunnarson

Assistant Counsel

Illinois EPA

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

Illinois 62794-9276

14

---

As

to

the

Respondent

Patrick W. Hayes

Guyer

& Enichen

2601 Reid Farm Road

Rockford,

IL 61114

G.

Modification of Stipulation

The parties may, by mutual written consent, agree to extend

any compliance dates or modify the terms of this Stipulation.

A

request ‘for’any~.rnodificationshall be made in writing and

submitted

to’

the.. contact

persons

identified”~.”i~~~’Section

VIII.H.

Any such request shall be made by separate document, and shall

not be submitted within any other report

Or’ submittal required by

this

Stipulation.

Any

such

agreed

modification

shall

be

in

writing,

signed

by

authorized

representatives’of

each

party,

and

then

accompany

a

joint

motion

to

the

Illinois

Pollution

Control

Board

seeking

a

modification

of

the

prior

order

approving

and

accepting the Stipulation to approve and accept the Stipulation

as amended.

.

H.

Enforcement of Board Order

‘

1.

Upon the entry of the Board’s Order approving 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.

15

---

2.

Respondent 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

arid

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 Respondent 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.

16

---

‘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

‘2

BY:

11

~

(N~u”~t~

TE:

RO~MARI

~ZEAU,

Chi~

Environmental Bureau

Assistant Attorney General

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

l-(

DATE:

~g

BY:

______

_____

‘WILLIAM

D.

ING

SOLL

Acting

Chief

Legal

Counsel

YOUSSI

REAL

ESTATE

AND

DEVELOPMENT,

INC.

BY

__________________

,

DATE:

~

/1

q/o~

CHRISTOPHEF/’YOUSSi

President

G:\Environmental Enforcement\JOEL\Case Documents\Yous~i\Stipuiationfinal .doc

17

---

CERTIFICATE OF SERVICE

I,George

D.

Theophilos, anAssistant

AttorneyGeneral,

do

certify

that

I

causedto bemailed,

this

10th

day of March,

2005,

the

foregoing

STIPULATION

AND

PROPOSAL

FOR

SETTLEMENT to thepersons listed on said Service Listby first class mail in apostage pre-paid

envelope

and

depositingsamewith theUnited States Postal Service located at

100 West

Randolph

Street, Chicago, Illinois

60601.

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‘GeorgeD~‘heophilos

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