PEOPLE OF THE STATE OF ILLINOIS,
Complainant
V.
)
Land)
RECE~VE~
CLERK’S
~Fr~’~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN
6
2003
STATE OF ILLINOIS
Pollution control Board
PCB 99-92
HARTZ
CONSTRUCTION CO.,
INC.,
)
(Enforcement
-
an Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the
6th
day of June,
2003,
I filed
with the Clerk of the Illinois Pollution Control Board a
Stipulation and Proposal for Settlement and a Motion to Request
Relief From Hearing Requirement,
copies of which are attached
hereto and hereby served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
By:
Date: June
6, 2003
REBECCA A. BURLINGH7~M
Senior Assistant Attorn~
Environmental Bureau
100
W. Randolph St.,
11th Fl.
Chicago,
Illinois
60601
(312)
814-3776
General
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Johnine
J. Brown
Brown Environmental Law Group,
P.C.
836 West Ancona
Chicago,
Illinois
60622
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
11th
Floor
Chicago,
Illinois 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDREc~~yE~
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERMS
OFFICE
JUN
G2003
Complainant,
STATE
OF ILLINOIS
V.
)
PCB
99-92
Poll~t
ion Control Board
HARTZ
CONSTRUCTION
CO.,
INC.,
)
(Enforcement
-
Land)
an
Illinois
corporation,
Respondent.
MOTION TO. REQUEST 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
requests relief from the hearing requirement in the above-captioned
matter.
In support thereof,
the Complainant states as follows:
1.
On
December
29,
199,
a
Complaint
was filed with the
Pollution Control Board
(“Board”)
in this matter.
On June
6,
2003,
a Stipulation and Proposal for Settlement was filed with the Board.
2.
Section 31(c) (2)
of the Illinois Environmental
Protection Act
(hlActhl),
415 ILCS 5/31(c) (2),
effective August 1,
1996,
allows the parties in certain enforcement cases to request
relief from the mandatory hearing requirement where the parties
have submitted to the Board a stipulation and proposal for
settlement.
Section 31(c) (2)
provides:
Notwithstanding
the
provisions
of
subdivision
(1)
of this
subsection
(c),
whenever
a
complaint
has
been
filed
on
behalf
of
the
Agency
or
by
the
People
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)
.
Unless
the
Board,
in
its
discretion,
concludes
t.hat
a
hearing
will
be
held,
the
Board
shall
cause
notice
of
the
stipulation,
1
proposal and request for relief to be published and sent in
the.same manner as
is required for hearing pursuant to
subdivision
(1)
of this subsection.
The notice shall include
a statement that any person may file a written 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)
3.
No hearing is currently scheduled in the instant case.
4.
The
Complainant
requests
the
relief
conferred
by
Section
31(c) (2)
of the Act.
WHEREFORE,
the
Complainant,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
by
LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois,
requests
relief
from
the
requirement
of
a
hearing
pursuant
to
415
ILOS
5/31(c)
(2),
effective
August
1,
1996.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney
General
of
the
State of I1~Linois
By:
~
~
~J
j~.
~
REBECCA A.
BURLINGHAM
Senior
Assistant
Attorney
General
Environmental
Bureau
188
W.
Randolph
St.,
20th
Fl.
Chicago,
Illinois
60601
(312)
814-3776
2
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARDREC~~VED
CLERK’S
OFFICE
PEOPLE
OF
THE
STATE
OF
ILLINOIS
JUN
6
2003
Complainant,
PCB 99-92
STATE OF ILLINOIS
v.
)
Pollution
Control Board
(Enforcement
-
Land)
HARTZ
CONSTRUCTION
CO.,
INC.,
an
Illinois
corporation,
Respondent.
STIPULATION
AND
PROPOSAL
FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois,
oil
her
own
motion,
and
at
the request of the Illinois Environmental Protection Agency
(“Illinois EPA”), and Respondent,
HARTZ CONSTRUCTION CO.,
INC.
(!‘Hartz”), by its attorney,
do hereby submit this Stipulation and
Proposal for Settlement
(“Agreement” or “Stipulation”)
.
The parties
agree that the Complainant’s statement of facts contained herein is
agreed to only for the purposes of settlement.
The parties further
state that neither the fact that
a party has entered into this
stipulation,
nor any of the facts stipulated herein,
shall be
admissible into evidence,
or used for any purpose
in this,
or any
other
proceeding,
except
to
enforce
the
terms
hereof,
by
the
parties
to this agreement.
Notwithstanding
the
previous
sentence,
this
Stipulation,
and
any Illinois Pollution Control Board
(“Board”)
order accepting same,
may be used as evidence of a past adjudicated violation of the Act
as
alleged
herein,
pursuant
to
Section
42(h)
of
the
Illinois
1
Environmental Protection Act
(“Act”),
415 ILCS 5/42(h) (2002),
in
determining
appropriate
civil
penalties
for
any
future
violations
of
the
Act.
This
Stipulation
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.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and of
the parties consenting hereto pursuant to the Act,
415 ILCS
s/i
et
seq.
(2002)
II.
AUTHORIZATION
The
undersigned
representatives
f or
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.
APPLICABILITY
This
Stipulation
shall
apply
to,
and
be
binding
upon,
the
Complainant and Respondent,
and any officer,
agent,
employee or
servant of Respondent,
as well as the Respondent’s successors and
assigns.
The Respondent shall not raise as a defense to any
2
enforcement action taken pursuant to this settlement the failure of
its
officers,
directors,
agents,
servants
or
employees
to
take
such
action
as
shall
be
required
to
comply
with
the
provisions
of
this
settlement.
IV.
STATEMENT OF FACTS
1.
The Illinois EPA is an administrative agency of the State
of Illinois,
created pursuant to Section 4 of the Act,
41.5 ILCS 5/4
(2002), and is charged,
inter alia,
with the duty of enforcing the
Act.
2.
Respondent Hartz,
at all times relevant to the Complaint
in this matter, was and is an Illinois corporation.
3.
Hartz,
at all times relevant to the Complaint in this
matter, owned and/or operated and exercised control over the
property known as the Eagle Ridge subdivision
(“Property”
or
“Site”)
.
The Property consists of seventy-seven
(77) acres of land
and is generally bounded by
107th
Street on the north, the Illinois
Harbor Belt railroad track and lO9~Street on the south,
Central
Avenue on the west,
and the Wolfe Wildlife Refuge on the east,
in
Oak Lawn,
Cook County,
Illinois.
3
V.
VIOLATIONS
The Complaint alleges the following violation:
OPEN DUMPING
-
Violation of Section 21(a)
of the Act,
415 ILCS
5/21(a) (2002)
VI.
NATURE OF RESPONDENT’S
OPERATIONS
Before 1986, the Property was used for the disposal of debris
from the 1967 tornado and possibly other materials.
Sometime after Hartz purchased the Property in 1986,
Hartz
began constructing a residential subdivision on the Site called
Eagle Ridge.
Hartz’s construction activities included excavating
areas for sewers and foundations,
and constructing streets
throughout the subdivision.
VII.
EXPLANATION OF HARTZ’
COMPLIANCE EFFORTS
1.
In early
1994,
during
the construction of Phases
3,
4 and
5, Hartz discovered buried materials which the Illinois EPA alleges
were waste upon excavation.
The alleged
waste
included
construction
and demolition debris,
such as bricks, broken concrete,
stone,
dirt,
rock,
sand,
chunks of wood,
reclaimed asphalt pavement,
gypsum,
plaster, paper,
landscape waste,
tarry soils,
scrap metal,
a metal
drum,
and a battery casing.
4
H
2.
On
August
11,
1994,
the
Illinois
EPA
sent
a
letter
to
Hartz setting out the Illinois EPA’s position regarding the proper
management
of
alleged
waste
found
at
the
Site,
which
the
Illinois
EPA viewed as special wastes requiring off-site disposal.
On August
29,
1994,
Hartz responded to the August
11,
1994 letter by setting
out its position that most of the materials it found were not
special wastes and did not threaten health or the environment,
and
further proposir~gthat it was possible to segregate wastes and
suspect soils requiring off-site disposal from uncontaminated
construction and demolition materials.
3.
On November 22,
1994,
Hartz provided the Illinois EPA with
a proposal for the management
of the alleged waste it found at the
Site.
4.
On November 15,
1995,
the Illinois EPA sent a Pre-
Enforcement
Conference
letter
to
Hartz
setting
forth
the
alleged
violations.
On December
13,
1995,
a Pre-Enforcement Conference was
held
between
the
Illinois
EPA
and
Hartz.
5.
On January 26,
1996,
the Illinois EPA sent a Pre-
Enforcement Conference Follow-Up Letter requesting Hartz to submit a
response with respect to the alleged violations, and provide a
proposal for their resolution.
6.
On February 1,
1996,
Hartz provided the Illinois EPA its
response to the Pre-Enforcement Conference Follow-Up Letter.
The
response again denied that Hartz had caused or allowed open dumping,
explained the actions it was taking to use or dispose of the alleged
5
waste,
and proposed a protocol therefor.
7.
Hartz
tested
ten
(10)
soil
borings
in
October
1999.
Hartz
asserts
that
the
results
showed
that
the
soils
were
not
hazardous;
that
Hartz
segregated
usable
from
non-usable
materials;
that
about
ten cubic yards of metal scrap was collected and taken to a
salvage
yard, and a metal drum and a battery casing were taken to an off-
site
landfill;
and
that
the
uncontaminated
construction
and
demolition debris were used as road base.
VIII.
FUTURE PLANS OF COMPLIANCE
1.
Hartz in the future shall comply with all requirements of
the Act,
415 ILCS 5/1
et
seq.
(2002),
and the Board Regulations,
35
Ill. Adm.
Code Subtitles A through H.
2.
Hartz shall
cease and desist from future violations of the
Act and Board regulations,
including but not limited to the section
of the Act that was the subject matter of the Complaint,
as outlined
in Section V.
of this Stipulation.
IX.
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
order
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,
6
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
ques.tions 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 as follows:
1.
There is no known injury resulting from Hartz’s acts and
omissions as a1le~edin the Complaint.
2.
The Property,
and the residential subdivision located
thereon, that are the subject of the Complaint have social and
economic value.
3.
The.Property, and the residential subdivision located
thereon, that are the subject of the Complaint are suitable to the
area in which they are located.
4.
Complainant does not seek the removal of the alleged
waste.
The materials used as roadbed have been capped by the paved
streets.
The likelihood that residents will be exposed to the
wastes through direct contact or through the drinking water is
7
minimal
because
of
the.pavement
cap
and
because
the
subdivision
obtains its water from Lake Michigan.
5.
See
paragraph
4,
above.
X.
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
subdivisions
(a),
(b) (1),
(b) (2), (b) (3),
or
(b) (5)
of
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 violator
in
attempting
to
comply
with
the.
requirements
of
this
Act
and
regulations thereunder
or
to
secure
relief therefrom as provided by this
Act;
3.
any
economic
benefits
accrued
by
the
violator
because
of
delay
in
compliance with requirements;
4.
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;
8
and
5.
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 as follows:
1.
•The Illinois EPA first observed the alleged wastes at the
Site on June 10,
1994.
By late 1999, Hartz reported that it had
sent about ten cubic yards of metal scrap to a salvage yard and
disposed of off site at a permitted facility a metal drum and a
battery casing as reported to the Illinois EPA on November 12,
1999.
Although there were no known injuries resulting from the alleged
violations, the Illinois EPA believes that the alleged wastes could
have threatened human health and the environment if improperly
managed or if left where they were found at the Site.
2.
Complainant asserts that Hartz did not demonstrate
diligence in returning to compliance because all of the alleged
wastes were not removed from the Site.
At some time after the
alleged wastes were excavated at the Eagle Ridge subdivision,
Hartz
claimed that
it recycled the metal scrap at a salvage yard,
and
disposed of the metal drum and battery casings at an off-site
disposal facility, but the remaining material was used on site as
road base.
The remaining materials that were excavated were not
disposed of off site.
Hartz asserts that it did demonstrate
diligence in returning to compliance during construction of Phases
3,
4 and 5 of Eagle Ridge.
It has stated that
it
segregated
.9
suspected
materials
from
the
remaining
materials
and
tested
soil
in
1994 and 1999.
3.
Complainant asserts that Hartz has realized an economic
benefit by disposing of the alleged wastes on site under the new.
streets in the subdivision.
Hartz asserts that it was forced to
incur
the
costs
of
staff
time,
environmental
consultants,
laboratories and attorneys
in responding to the Illinois EPA’s
investigation.
Some of the cost was offset by being able to use
some of the found materials
(alleged wastes)
as road base in lieu of
soil
brought
in
from
off
site.
Based
upon
conflicting
characterizations and a lack of information about the alleged waste
present at the Site,
Complainant is unable to calculate with
reasonable certainty the economic benefit realized.
The
parties
believe
that
a
civil
penalty
of
Thirty-One
Thousand
Five
Hundred
Dollars
($31,500.00)
is
appropriate
in
view
of
the civil penalty provisions cited above.
5.
There
have
been
no
adjudicated
violations
of
the
Act
by
Hartz.
XI.
CEASE AND DESIST
Hartz shall cease and desist from future violations
of the Act
and Board Regulations,
including but not limited to those sections of
the Act that were the subject matter of the Complaint as outlined in
Section V of this Stipulation.
10
XII.
TERMS OF SETTLEMENT
1.
Hartz denies the violations alleged in the Complaint
filed in this matter and referenced herein but wishes to settle the
case to avoid the cost,
time and uncertainty of further litigation.
•2.
Hartz shall pay a civil penalty of Thirty-One Thousand
Five Hundred Dollars
($31,500.00)
into the Illinois Environmental
Protection Trust Fund within thirty
(30) days from the date the
Board adopts a final opinion and order approving this Stipulation.
Payment shall be made by certified check or money order,
payable to
the Illinois Environmental Protection Agency,
designated to the
Illinois Environmental Protection Trust Fund,
and shall be sent by
first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,
IL 62794
A copy of the check shall be sent to:
Rebecca A. Burlingham
Senior Assistant Attorney General
Environmental Bureau
100 West Randolph Street,
11th Floor
Chicago,
IL 60601
Hartz shall write the case caption and number,
and its Federal
Employer Identification Number
(“FEIN”) upon the certified check or
money order.
~
3.
For purposes of payment and collection, Hartz may be
reached at the following address:
11
Hartz Construction Co.,
Inc.
8595 West 95th Street
Palos Hills,
IL 60465-5030
4.
Pursuant to Section 42(g)
of the Act,
415 ILCS 5/42(g)
(2002),
interest shall accrue on any amount not paid within the time
period prescribed herein,
at the maximum rate allowable under
Section 1003(a)
of the Illinois Income Tax Act,
3S ILCS 5/1003 (a)
(2002)
a.
Interest on unpaid.amounts shall begin to accrue
from the date the penalty is due and continue to accrue to the date
payment is received.
b.
Where partial payment is made on any payment amount
that
is due,
such partial payment shall be first applied to any
interest on unpaid amounts then owing.
c.
All interest on amounts owed the Complainant,
shall
be paid by certified check payable to the Treasurer of the State of
Illinois for deposit in the Environmental Protection Trust Fund and
delivered in the same manner as described in Section XI.2.
herein.
XIII.
COMPLIANCE WITH OTHER LAWS
AND
REGULATIONS
This Stipulation in no way affects Hartz’s responsibility to
comply with any federal,
state or local laws and regulations.
12
XIV.
RELEASE FROM LIABILITY
In consideration of Hartz’s payment of a $31,500.00 civil
penalty and its commitment to refrain from further violations of the
Act and the Board Regulations, upon receipt by Complainant of the
payment required by Section XI of this Stipulation,
the Complainant
releases,
waives and discharges Hartz from any further liability or
penalties for the alleged violations that were the subject matter of
the Complaint herein.
However, nothing in this Stipulation shall be
construed as a waiver by Complainant of the right to redress future
violations 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.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/
Asbestos Litigation Division
By:
~
~
~
Assistant Attorney General
Dated:
5
/(~
R~
13
FOR THE RESPONDENT:
HARTZ ~4RU~)f1~N
CO.,
INC.
DONALD L
,..
By:
.
I’
Its
Pr~c~id
r
Dated:
.c~
.3
I
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By
:
(,A~iefLe~aicounse1
Division of Legal Counsel
Dated:
~~7~03
______
14
CERTIFICATE OF SERVICE
I, REBECCA A.
BURLINGHAN,
an Assistant Attorney General in
this case,
do certify
that
I caused to be served this
6th
day of
June,
2003,
the foregoing Stipulation and Proposal for Settlement,
Motion to Request Relief From Hearing Requirement and Notice of
Filing upon the persons listed on said Notice by depositing same in
an envelope,
first class postage prepaid, with the United States
Postal Service at 100 West Randolph Street,
Chicago,
Illinois,
at
or before the hour of
5:00 p.m.
a
REBECCA A.
BURLINGHA.M
