.RkC~VED

CLERK’S OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

SEP

29

2003

PEOPLE OF THE STATE OF ILLINOIS,

STATE

OF ILLINOIS

Complainant

Pollution

Control Board

v.

)

PCB

No.

03-53

(Enforcement

-

Water)

NORTHERN

BUILDING

CONCEPTS,

INC.,

an Illinois corporation,

and

LANDSCAPE CONCEPTS CONSTRUCTION,

INC.,

an Illinois corporation,

Respondents.

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that today we have filed with the

Pollution Control Board the following Stipulation and Proposal

for Settlement and Request for Relief from the Hearing

Requirement on behalf of the People of the State of Illinois, a

copy of which

is attached and hereby served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

BY:

__________

JOEL

J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th

Floor

Chicago,

Illinois

60601

(312)

814-6986

PEOPLE OF THE STATE OF ILLINOIS

ex rel.

MICHAEL

J.

WALLER

State’s Attorney,

Lake County,

Illinois

BY:

,Z~6 ~

LISLE STALTER

Assistant State’s Attorney

Lake County State’s Attorney

18

N.

County Street

Waukegan,

Illinois

60085

(847)

377-3050

DATE:

September 29,

2003

THIS

FILING

IS SUBMITTED ON RECYCLED PAPER

---

SERVICE LIST

Mr. Brad Halloran,

Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W. Randolph Street,

Suite 11-500

Chicago,

IL 60601

(312)

814-3620

Ms. Lisle Stalter

Office of the Lake County State’s Attorney

18

N. County Street

Waukegan,

IL 60085

(847)

377-3109

Mr. Charles Gunnarson,

Esq.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O.

Box

19276

Springfield,

Illinois

62702

(217)

782-5544

Mr. Robert T.

O’Donnell

Eiden

& O’Donnell,

Ltd.

230 Center Drive,

Suite

102

Vernon Hills,

IL 60061

(847)

367-2750

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

R E~

C ~

V

PD

PEOPLE OF THE STATE OF ILLINOIS,

)

CLERK’S Oppic’F

Complainant

SEP

2 92003

PCB No.

03-5

3STATE OF 1LL1NO~S

(Enforcemen~oflu~t~~roj

Board

NORTHERN

BUILDING

CONCEPTS,

INC.,

an

Illinois

corporation,

and

LANDSCAPE

CONCEPTS

CONSTRUCTION,

INC.,

an

Illinois

corporation,

Respondents.

MOTION FOR RELIEF FROM HEARING REQUIREMENT

NOW COMES Complainant,

PEOPLE OF THE STATE OF ILLINOIS, by

LISA MADIGAN, Attorney General

of the State of Illinois,

and

pursuant to Section 31(c) (2)

of the Illinois Environmental

Protection Act

(“Act’),

415 ILCS 5/31(c) (2)

(2002),

moves that

the Illinois Pollution Control Board

(“Board”)

grant the parties

in the above-captioned matter relief from the hearing requirement

imposed by Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2002)

.

In support of this motion,

Complainant states as

follows:

1.

The Complaint

in this matter alleges violations of the

Board’s water pollution regulations in addition to Sections

12 (a),

12 (d)

,

and

12 (f)

of the Environmental Protection Act

(“Act”)

2.

Complainant is filing this Motion and a Stipulation and

Proposal for Settlement with the Board.

3.

The parties have reached agreement on all outstanding

issues

in this matter.

)

THIS FILING

IS SUBMITTED ON RECYCLED

PAPER

---

4.

This agreement

is presented to the Board in a

Stipulation and Proposal for Settlement which is filed

contemporaneously with this Motion.

5.

All parties agree that a hearing on the Stipulation and

Proposal for Settlement

is not necessary,

and respectfully

request relief from such a hearing as allowed by Section 31(c)

(2)

of the Act,

415 ILCS 5/31(c) (2)

(2002)

WHEREFORE,

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

hereby requests that the Board grant this motion for relief from

the hearing requirement set forth in Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2002).

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

BY:

________________

JOEL J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago,

Illinois

60601

(312)

814-6986

PEOPLE OF THE STATE OF ILLINOIS

ex

rel.

MICHAEL J. WALLER

State’s Attorney,

Lake County,

Illi~ois

BY:

~

~

~2T5

LISLE STALTER

Assistant State’s Attorney

Lake County State’s Attorney

18 N.

County Street

Waukegan,

Illinois 60085

(847)

377-3050

DATE:

September 29,

2003

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~LCRKb

PEOPLE OF THE STATE OF ILLINOIS

)

SEP

2 9

2003

ex rel. LISA MADIGAN, Attorney

)

STATEOFILLINOIS

General

of

the State of Illinois,

)

pollution Control Board

and ex rel. MICHAEL WALLER,

State’s)

Attorney for Lake County,

Illinois

Complainant,

v.

)

PCB No.

03-53

(Enforcement

-

Water)

NORTHERN BUILDING CONCEPTS,

INC.,

an Illinois corporation, and

LANDSCAPE CONCEPTS CONSTRUCTION,

INC.,

an Illinois corporation,

Respondents.

STIPULATION

AND

PROPOSAL

FOR SETTLEMENT

Complainant,

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

by

LISA

MADIGAN, Attorney General of the State of Illinois,

and MICHAEL

WALLER,

State’s Attorney of Lake County, and Respondents,

NORTHERN BUILDING CONCEPTS,

INC.

(“Northern”),

an Illinois

corporation, and LANDSCAPE CONCEPTS CONSTRUCTION,

INC.

(“Landscape”)

,

an Illinois corporation,

do

hereby submit this

Stipulation and Proposal for Settlement

(“Stipulation”)

to the

illinois Pollution Control Board

(“Board”)

for approval.

The

iv~~rtiesagree that Complainant’s statement of facts contained

herein is agreed to only for the purposes of settlement.

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.

1

---

I.

JURISDICTION

The Board has jurisdiction

of the subject matter herein and

of the parties consenting hereto pursuant to the 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.

III.

STATEMENT

OF FACTS

A.

PARTIES

1.

The subject Complaint was brought by the Attorney

General and the State’s Attorney of Lake County pursuant to the

terms and provisions of Section 31 of the Act,

415 ILCS 5/31

(2002)

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

Northern was an Illinois corporation in good standing.

4.

At all times relevant to the Complaint,

Respondent

2

---

Landscape was an Illinois corporation in good standing.

B.

SOURCE DESCRIPTIONS

1.

On

or

about

September

11,

1998,

Northern

purchased

a

parcel

of

property

on

Depot

Street,

in

Antioch,

Lake

County,

Illinois,

commonly known as Depot Landings

(“Site”), and is

currently the owner of this Site as of the date of the filing of

this

Stipulation.

2.

From at least March

1,

2001,

or on dates better known

to Respondents,

until about October

5,

2001, Northern developed

the Site for residential use.

Site preparation and grading work

was performed at the site by Landscape.

3.

Storm water runoff from the Site drained into wetlands

that are located in the Sequoit sub-basin of the Fox River

watershed

by

way

of

the

Chain

0’

Lakes.

4.

From

at

least

March

2,

2001

and

continuing

until

about

October

5,

2001,

Northern

and

Landscape

caused or allowed the

discharge

of

storm

water

containing

silt

and/or

sediment

from

the

Site.

C.

VIOLATIONS

This Stipulation is intended to resolve the allegations

in

the Complaint filed in this matter.

The Complaint alleges

violations of the Act and of the Board’s Water Pollution

Regulations outlined as follows:

COU1~TI

Water pollution and creating offensive conditions

in violation of Section 12(a)

of the Act,

415 ILCS

3

---

5/12(a)

(2002),

and

Section

302.203

of

the

Board’s

Regulations,

35

Ill. Adm Code 302.203.

COUNT II

Creating a water pollution hazard in violation of

Section

12(d)

of

the

Act,

415

ILCS

5/12

(d)

(2002)

and

COUNT

III

Unlawful

discharges

in

violation of Section 12(f)

of the Act,

415 ILCS 5/12(f)

(2002),

and Section

309.102(a)

of the Board’s Regulations,

35

Ill.

Adm.

Code

309.102(a).

APPLICABILITY

This Stipulation shall apply to and be binding upon

Complainant and Respondents,

and any agent,

director,

officer,

employee or servant of Respondents,

as well as Respondents’

successors and assigns.

Respondents

shall not raise as

a defense

to any enforcement action taken pursuant to this settlement the

failure of his agents,

directors,

officers,

servants or employees

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

provisions of this settlement.

the Complaint filed in this matter and referenced herein.

and/or sediment from the Site.

Respondents will also abide by

4

---

the Act and the Board’s regulations.

VII.

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 as follows:

1.

Complainant contends that the impact to the public

as

a

result

of

the

allegations

against

Respondents

in

the

Complaint

was that Respondents caused substantial turbidity,

unnatural

color,

and

water

pollution

in

a

tributary

to

wetlands located in

the

Sequo±t sub-basin

of

the

Fox

River

watershed

by

way of the

5

---

Chain

0’

Lakes.

2.

The

parties

agree

that

Respondents’

operation is

of

social

and

economic

value

3.

The

parties

agree

that

Respondents’

development

is

suitable

to

the

area

where

it

is

located.

4.

The

parties

agree

that

compliance

with

the

requirements

off

the

Act

and

Board

regulations

is

both

technically

practicable

and economically reasonable.

5.

The

parties

agree

that

Respondents subsequently complied

with

the

Act

and

the

Board’s

regulations.

VIII.

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 or 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 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

6

---

subject

to

the

Act;

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

parties

agree

that

the

gravity

of

the

alleged

violations

is

significant

in

that

the

applicable

Board

Regulations

were

not

complied

with

which

resulted

in

water

pollution.

The

parties

agree

that

the

duration

is

equally

significant,

as

the

violations

continued

for

a

period

of

several

months.

2.

Complainant

alleges

that

Respondents

did

not

initially

exercise

due

diligence

in

complying

with

the

Act

and

the

Board’s

regulations.

3.

Complainant

alleges

that

Respondents

derived

economic

benefit

by

not

implementing

improvements

to

its

runoff

water

system

before

the

violations

began

in

2001.

4.

The

parties

agree

that

a

twelve

thousand

five

hundred

dollar

($12,500.00)

civil

penalty

is

adequate

to

deter

Respondents

from

future

violations.

5.

Complainant

is unaware of any previously adjudicated

violations by Respondent.

7

---

Ix.

TERMS OF SETTLEMENT

1.

Respondents shall pay a civil penalty of twelve

thousand five hundred dollars

($12,500.00)

within thirty

(30)

days

of the date of entry of this Stipulation and Proposal for

Settlement.

Payment of ten-thousand dollars

($10,000.00)

of that

penalty shall be made by certified check or money order payable

to the “Illinois Environmental Protection Agency” and designated

to the Environmental Protection Trust Fund.

The certified check

or money order shall include Respondents’

federal employer

identification numbers and be sent by first class mail

to:

Illinois Environmental Protection Agency

Fiscal

Services

Section

1021

North

Grand

Avenue East

P.O.

Box

19276

Springfield,

Illinois

62794-9276

A

copy

of

the

check

shall

be

sent

to:

Joel

Sternstein

Assistant

Attorney

General

Environmental Bureau

188 West Randolph Street 20th Floor

Chicago,

Illinois

60601

Payment

of

the

remaining

two

thousand

five

hundred

dollars

($2,500.00)

shall

be

made

by

certified

check

or

money

order

payable

to

the

“Lake

County

State’s

Attorneys

Office/Lake

County

Treasurer”.

The

certified

check

or

money

order

shall

include

Respondents’

federal

employer

identification

numbers

and

be

sent

by

first

class

mail

to:

8

---

Ms.

Lisle

Stalter

Lake

County

State’s

Attorneys

Office

18

N.

County

Street

Waukegan,

Illinois

60085

On

the

checks

and/or

money

orders,

Respondents

shall

include

the

case

name

and

case

number.

2.

For

the

purposes

of

collection,

inquires

can

be

addressed

to

Respondents’

attorney

at:

Robert

O’Donnell

Eiden

&

O’Donnell

230 Center Drive

Vernon Hills,

Illinois,

60061

3.

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 prescribed herein at the maximum rate allowable under

Section 1003

(a)

of the Illinois Income Tax Act,

35

ILCS 5/1003

(a)

(2002)

a.

Interest

on

unpaid

amounts

shall

begin

to

accrue

from

the

date

the

penalty

payment

is

due

and

continue

to

accrue

to

the

date

payment

is

received.

b.

Where

partial

payment

is

made

on

a

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

Complainant shall be

paid

by

certified

checks

payable

to

the

“Illinois

Environmental

Protection

Agency”

for

deposit

in

the

Environmental

Protection

Trust

Fund

and

to

the

“Lake

County

State’s

Attorneys

Office/Lake

9

---

County Treasurer”

on a pro rata basis and delivered

in the same

manner as described in Section IX.l herein.

d.

In the event that Respondents tail to make all or

part of the payment set forth in Section IX.l,

Respondents shall

be in default and the unpaid balance

owed, plus any accrued

interest,

shall become due and owing Complainant immediately.

4.

Respondents shall in the future operate in compliance

with the Act and Board Regulations promulgated thereunder.

5.

Respondents shall cease and desists from further

violations

of

the

Act

and

Board

regulations,

including

but

not

limited

to,

those

Sections

of

the

Act

and

Board

regulations

that

were

the

subject

matter

of

the

Complaint

as

outlined

in

Section

III.C

of

this

Stipulation.

x.

COMPLIANCE WITH OTHER LAWS AND REGULATIONS

This

Stipulation

and

Proposal

for

Settlement

in

no

way

affects

Respondents’

responsibility

to

comply

with

any

federal,

state

or

local

laws

and

regulations,

including

but

not

limited

to

the

Act,

415

ILCS

5/1

et seq.

(2002),

and

the

Board

Regulations,

35

Ill.

Adm.

Code

Subtitle

A

through

H.

XI.

•

FUTURE USE

Notwithstanding any other language in this Stipulation and

Proposal

for

Settlement to the contrary,

this Stipulation and

10

---

Proposal

for

Settlement

may

be

used

against

Respondents

in

any

subsequent

enforcement

action

or

permit

proceeding

as

evidence

of

a

past

adjudication

of

violation

of

the

Act

and

the

Board

Regulations promulgated thereunder,

for purposes of Section 39(i)

and/or

42(h)

of

the

Act,

415

ILCS

5/39(i)

and/or

5/42(h)

(2002)

XII.

RIGHT

OF ENTRY

In

addition

to

any

other

authority,

the

Illinois

EPA,

its

employees

and

representatives;

the

Attorney General,

her agents

and

representatives;

and

the

Lake

County

State’s

Attorney,

his

agents

and

representatives,

shall

have

the

right

of

entry

into

an

upon

Respondents’

Site,

which

is

the

subject

of

this

Stipulation

and

Proposal

for

Settlement,

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.

XIII.

RELEASE FROM LIABILITY

In

consideration

of

Respondents’

full

payment

of

the

civil

penalty,

commitment

to

comply

with

the

terms

of

this

Stipulation

and

Proposal

for

Settlement

entered

herein,

the

requirements of

the

Act,

and

the

regulations

promulgated

thereunder,

Complainant

11

---

releases

waives

and

discharges

Respondents

and

its

employees,

agents,

directors,

officers,

successors

and

assigns

from

any

further

liability

or

penalties

from

the

violations

of

the

Act

and

Board

Regulation

which

were

the

subject

matter

of

the

Complaint,

upon

receipt

by

Complainant

of

all

payments

required

by

Section

IX

of

this

Stipulation.

However,

nothing

in this Stipulation and

Proposal

for

Settlement

shall

be

construed

as

a

waiver

by

Complainant

of

the

right

to

redress

future

or

heretofore

undiscovered

violations

or

obtain

penalties

with

respectthereto.

1~’

---

WHEREFORE,

Complainant

and

Respondent

request

that

the

Board

adopt

and

accept

the

foregoing

Stipulation

and

Proposal

for

Settlement

as

written.

AGREED:

FOR

COMPLAINANT:

PEOPLE

OF

THE

STATE

OF

ILLINOIS

LISA

MADIGAN

Attorney General,

State of Illinois

MATTHEW J.

DUNN,

Chief

Environmental

Enforcement\Asbestos

Litigation

Division

By:

~X1

~

~Jj~iw

R~SEMARIECAZEAU,

Ch~,4’f

Environmental

Bureau~

Assistant

Attorney

General

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY

By:

/J,~ESPHFE.

SVOBODA

(/hief

Legal

Counsel

LAKE

COUNTY

STATE’S

ATTORNEY

OFF~’ICE

Ch~ f

Deputy

Attorney,

Civil

Division

Date:

~

~

3

Date:

—

—

3

Date:

~)

1~o3

---

FOR RESPONDENT:

By:

_______________________

Date:

September

18,

2003

Michael

Kerton

President

Northern Building Concepts,

Inc.

By:

_____________________

Date:

September

19,

2003

Peter

Devore

President

Landscape

Concepts

Construction,

Inc.

H:\cornrnon\Environrnental\JOEL\Case Docunients\Landscape Concepts\Settlement-finalwpd

14

---

CERTIFICATE

OF SERVICE

I,

JOEL

J.

STERNSTEIN,

an

Assistant

Attorney

General,

certify

that

on

the

29th

day

of

September,

2003,

I

caused

to

be

served

by

First

Class

Mail

the

foregoing

Stipulation

and

Proposal

for

Settlement,

Request

for

Relief

from

the

Hearing Requirement,

and

Notice

of

Filing

to

the

parties

named

on

the

attached

Service

• list,

by

depositing

same

in

postage

prepaid

envelopes

with

the

United

States

Postal

Service

located

at

100

West

Randolph

Street,

Chicago,

Illinois

60601.

~

JOEL

J.

STERNSTEIN

H:\common\Environmental\JOEL\Case Documents\Landscape Concepts\stip-notice-relief-hearing.wpd