RECE~VED
CLERK~SOFFICE
APR 26
2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
PCB No.
01-104
v.
)
(Enforcement
-
Water)
CITY OF WAUKEGAN,
a Municipal Corporation,
Respondent.
NOTICE OF FILING
TO:
Mr. Michael
S. Blazer
The Jeff Diver Group,
LLC
1749 South Naperville Road,
Suite 102
Wheaton,
Illinois 60187
PLEASE TAKE NOTICE that
I have today filed with the Office of
the Clerk of the Illinois Pollution Control Board a Stipulation and
Proposal for Settlement and Request for
Relief from Hearing
Requirement,
true and correct copies of which are attached hereto
and herewith served upon you.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
BY:
‘1~’~~w~e
QI~~?~_~
MICHAEL
C.
PARTEE
Assistant
Attorney
General
Environmental
Bureau/North
188
West
Randolph
Street,
Suite
2001
Chicago,
Illinois
60601
Tel:
(312)814-2069
This Filing is Printed on Recycled Paper
CERTIFICATE OF SERVICE
It
is
hereby
certified
that
true
and
correct
copies
of
a
Stipulation and Proposal.for Settlement and Request for Relief from
Hearing Requirement were mailed,
first class postage prepaid,
to
the person listed on the Notice of Filing on April 26,
2004.
BY:
‘1AA~~~
MICHAEL
C.
PARTEE
It
is also hereby certified that the originals plus nine
(9)
copies of the foregoing were hand-delivered to the following person
on April
26,
2004:
Pollution Control Board, Attn: Clerk
James
R. Thompson Center
100
West
Randolph
Street,
Suite
11-500
Chicago,
Illinois
60601
BY:
__________
MICHAEL
C.
PARTEE
RECEIVED
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
APR
262004
by LISA MADIGAN, Attorney General
)
STATE OF
ILLIMOIS
of the State of Illinois,
Pollution ControlBoard
•
Complainant,
•
)
PCB No. 01-104
V.
)
(Enforcement
-
Water)
CITY OF
WAUKEGAN,
a
Municipal
Corporation,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH THE CITY OF WAtJKEGAN
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA
MADIGAN,
Attorney General of the State of
Illinois,
at the request of the
Illinois Environmental Protection Agency
(“Illinois EPA”),
and
Respondent, CITY OF WAUKEGAN
(“City”),
a municipal corporation,
do
hereby agree to this Stipulation and Proposal for Settlement
(hereinafter referred to as the “Agreement”) and submit it to the
Board for acceptance.
If the Board accepts and enters this
Agreement,
Respondent agrees to be bound by this Agreement and not
to contest its validity in any subsequent proceeding to implement
or enforce its terms,
except for purposes of interpretation as
provided
for
under
Section
VI
of this Stipulation.
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)
1.
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 Agreement and to legally bind
them to
it.
This Agreement may be signed in counterparts,
all of
which shall be considered one Agreement.
III.
STATEMENT OF FACTS
A.
Parties
1.
On January
5,
2001,
a Complaint was filed on behalf of
the People of the State of Illinois, by James E.
Ryan, then
Attorney General of the State of Illinois, on his own motion and at
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.
The City is
a municipal corporation incorporated under
the laws of the State of Illinois.
B.
Site Description
1.
The City was and is the owner and operator of
a sewage
lift station located at 4200 West NcGaw Road,
City of Waukegan,
Lake County,
Illinois
(“facility”)
.
The City’s facility utilizes
2
two electric pumps to lift sewage from a wet well to an elevated
discharge pipe which leads to a sewage treatment plant.
2.
In April 1999,
the first of the two electric sewage
pumps at the City’s facility failed.
3.
From April 1999 until July 23,
1999,
at about 10:30
a.m., the City operated its facility with only one of the two
electric sewage pumps in working condition.
4.
On July 23,
1999,
at about 10:30 a.m.,
the second
electric sewage pump at the City’s facility failed,
thereby causing
full lift station failure.
5.
On July 23,
1999,
at about 1:00 p.m.,
to avoid sewage
back-up, the City employed a mobile pump to discharge untreated
sewage from its facility into an adjacent receiving water.
6.
The receiving water into which the City pumped sewage is
a headwater of the Middle Fork of the Chicago River.
7.
From July 23,
1999,
at about
1:00 p.m.,
until July 27,
1999,
at about
12:00 p.m.,
the City pumped approximately 31,600
gallons of untreated sewage from its facility into the receiving
water.
8.
On July
27,, 1999,
at about 12:00 p.m., Respondent began
to use vactor trucks
to remove sewage from its facility to another
portion of its collection system for proper treatment until new
pumps could be installed.
By July 28,
1999,
new pumps were
installed at the facility and normal operation resumed.
Thereafter, Respondent voluntarily expended approximately $455,000
for the purchase of a tanker trailer for use in responding to sewer
3
and lift station discharges and in upgrading or replacing all dual
pumps at 10 lift stations to guard against a recurrence of the type
of incident that is the subject of this action.
9.
The City’s facility was not permitted by the Illinois
EPA pursuant to the National Pollutant Discharge Elimination System
(“NPJJES”)
to discharge untreated sewage to waters of the State.
c.
Allegations of Non-Compliance
•
Complainant contends that the Respondent violated the
following provisions
of the Act and Board’s Water Pollution
Regulations:
•
Count
I:
Water pollution in violation of 415
ILCS
•
5/12(a)
(2002),
and 35 Ill.
Adm. Code
309.102(a);
Count
II:
Water pollution control system failure in
violation of 415 ILCS 5/12 (a)
(2002)
,
and
35
Ill.
Adm. Code 306.102(a);
Count
III:
Sanitary sewer overflow and bypass in
•
violation of 415 ILCS 5/12(a)
(2002),
and 35
Ill.
Adm. Code 306.304 and 306.305(c); and
COunt
IV:
Water pollution discharge without an NPDES
•
permit in violation of 415 ILCS 5/12 (c) and
(f)
(2002),
and 35 Ill. Adm. Code 304.141(b)
and 309.102(a).
D.
Summary Judgment on the Alleged Violations
•On August 23,
2001,
the Board entered summary judgment in
favor of Complainant and against Respondent on Counts
I,
II and IV.
As to Count III,
the Board found that Respondent violated Section
•
12(a)
of the Act and Section 306.304 of the Board’s Water Pollution
Regulations, but Section 306.305(c)
of the Board’s Water Pollution
Regulations did not apply to the facts
in the present case and,
therefore,
Respondent did not violate Section 306.305(c).
4
IV.
APPLICABILITY
This Agreement shall apply to and be binding upon the
Complainant and 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 to enforce this Agreement the failure of
any of its officers, directors,
agents or employees to take such
act~ionas shall be required to comply with the provisions of
this
Agreement.
V.
COMPLIANCE WITH OTHER LAWS
AND
REGULATIONS
This
Agreement
in
no
way
affects
Respondent’s
responsibility
to comply with any other federal,
state or local laws or
regulations,
including,
but
not
limited
to,
the
Act
and
the
regulations promulgated thereunder at 35 Ill. Adm. Code Subtitles A
through H.
VI.
FORtTh~
The
parties
agree
that
the
forum
of
any
action
commenced
for
the purposes of interpretation and enforcement of the terms and
conditions
of this Agreement shall be the Circuit Court of Lake
County,
Illinois.
S
•
VII.
SEVERABILITY
It
is the intent of the parties that the provisions of this
Agreement 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
provisions shall remain in full force and effect.
VIII.
FACTS
AND
CIRCUMSTANCES BEARING UPON
THE REASONABLENESS
OF THE ALLEGED NONCOMPLIANCE
1.
Section 33(c)
of the Act,
415 ILCS
5/33(c)
(2002),
provides as follows:
(c)
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.
6
2.
Section 103.302
of the Board regulations,
35
Ill.
Adm.
Code 103.302, further provides that a written statement addressing
the facts and circumstances listed in
Section 33 (c)
of the Act must
be contained in all Stipulations and Proposals for Settlement
presented to the Board.
3.
In response to the factors set forth in Section 33(c)
of
the Act,
the parties state as follows:
a.
Interference with the protection of health, general
welfare and physical propert~yof the People resulted from the
discharge of approximately 31,600
gallons of sewage from
Respondent’s facility to the environment.
b.
The City’s facility has social and economic benefit
because it is an integral part in delivering sewage to the
treatment plant for proper treatment.
c.
The City’s facility
is suitable for the general
area in which it
is located.
d.
•
It is technically practicable and economically
feasible to prevent the discharge of sewage from Respondent’s
facility by maintaining and operating two functioning sewage
pumps at the facility.
•
e.
Subsequent to the time frame of the alleged
violations, Respondent installed two new pumps at the facility
and implemented an operation and maintenance protocol to
prevent a future lift station failure.
7
Ix.
CONSIDERATION OF THE SECTION 42 (h)
FACTORS
1.
Section 42(h)
of the Act, 415 ILCS 5/42(h)
(2002),
provides as
follows:
Civil penalties.
*
*
•
*
(h)
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 requirements of
this Act
and regulations thereunder or to âecure
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; and
(5)
the number, proximity in time,
and
gravity
of
previously
adjudicated
violations of this Act by the violator.
2.
In response to the factors set forth in Section 42(h)
of
the Act, the parties state as follows:
a.
The duration of the violations was from April
1999,
when the first pump failed at the facility,
to July 28,
1999,
when new pumps were installed at the facility and normal
8
operation resumed.
The gravity of the violations
is the
discharge of approximately 31,600 gallons of sewage to a water
of the State.
b.
Following the time frame of the alleged violations,
Respondent exhibited due diligence in its method of operation,
complying with the requirements of the Act and regulations
promulgated thereunder.
c.
Some economic benefit likely accrued to the
Respondent from the alleged noncompliance with the Act andT
regulations, but the State is presently unable to quantify the
value of the benefit received.
d.
Complainant contends that the civil penalty to be
paid by Respondent will serve to deter future violations of
the Act and regulations promulgated thereunder,
and will
enhance voluntary compliance with federal and state
environmental laws.
•
e.
Complainant is aware of two previously adjudicated
matters involving violations
of the Act by the Respondent.
See Illinois EPA v.
City of Waukegan,
et
al.,
PCB No.
71-298
•
(Dec.
21,
1971)
(involved violations of various subsections of
415 ILCS 5/21
(1970)
and the solid waste regulations
promulgated thereunder at a waste disposal site in 1971);
Illinois EPA v. City of Waukegan,
et
al.,
PCB No.
77-322
(Oct.
8,
1981)
(involved violations of subsections 415 ILCS 5/12 and
5/21
(1980),
and various water pollution and solid waste
9
regulations promulgated thereunder at
a waste disposal site in
mid-197Os)
3.
The parties further state that
the
civil
penalty
to
be
paid by Respondent was determined in light of the penalty factors
set forth under Section 42(h)
of the Act,
the statutory maximum
civil penalty, and other,
relevant civil and administrative
settlements.
x.
TERMS OF SETTLEMENT
A.
Penalty
1.
The Respondent shall pay a civil penalty of Twenty-Five
Thousand Dollars
($25,000.00) within 30 calendar days after the
date upon which the Board issues a final order accepting this
Agreement.
2.
Payment by the Respondent shall be made by check or
money order, payable to the Illinois EPA for deposit in the
Environmental
Protection
Trust
Fund.
(“EPTF”)
and 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
The name,
case number, and the City’s Federal Employer
Identification Number
(“FEIN”),
3 6-6006137,
shall appear on the
face of the check or money order.
A copy of the check or money
order and the transmittal letters shall be sent to:
•
10
•
Michael
C.
Partee
(or other designee)
•
Assistant Attorney General
Environmental Bureau
•
188 West Randolph Street,
Suite 2001
Chicago,
Illinois
60601
3.
For purposes of payment and collection,
the Respondent’s
attorney may be reached at the following address:
Michael
S. Blazer
The Jeff Diver Group, L.L.C.
1749
South Naperville Road,
Suite 102
Wheaton,
Illinois
60187
4.
In the event of default, the Complainant shall be
entitled to reasonable costs of collection,
including reasonable
attorney’s
fees,
as determined by the Circuit Court.
B.
•
Interest on Penalties
1.
As required by Section 42(g)
of the Act,
415
ILCS
5/42(g)
(2002),
interest
shall accrue on any penalty amount owed by
Respondent
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)
2.
Interest on unpaid penalties
shall begin to accrue from
the
date
the penalty is due and continue to accrue to the date
payment
is
received
by
the
Illinois
EPA.
3.
Where partial payment is made on any penalty amount that
is due, such partial payment shall be first applied to any interest
on unpaid penalties then owing.
4.
All interest on penalties owed the Complainant shall be
paid by check or money order payable to the Illinois EPA for
deposit in the EPTF at the above-indicated address.
The name,
case
number, and the defaulting Respondent’s FEIN shall appear on the
11
face of the check or money order.
A copy of the check or money
order and the transmittal letter shall be sent to:
Michael
.C.
Partee
(or other designee)
Assistant Attorney General
Environmental Bureau
188 West Randolph Street,
Suite 2001
Chicago, Illinois 60601
C.
Future Use
This Agreement may be used against the Respondent
in any
subsequent enforcement action or permit proceeding as evidence of a
past adjudication of :violation of the Act and the 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)
D.
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 City’s facility which is the subject of this Agreement,
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,
to
the
extent
allowable
by
law.
E.
Cease and Desist
The Respondent shall comply with the Act and regulations
promulgated thereunder,
including but not limited to those sections
of the Act and regulations that were the subject matter of the
Complaint as outlined in Section III.C of this Agreement.
12
F.
Release from Liability
In
consideration
of
the
Respondent’s
payment
of
a
$25,000.00
civil
penalty
and
Respondent’s
commitment
to
comply with the Act
and regulations promulgated thereunder,
the Complainant releases,
waives and discharges the Respondent from any further liability or
penalties
for
alleged
violations
of
the
Act
and
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 ~filedsimultaneous
with this Agreement.
The Complainant reserves, and this Agreement
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 Agreement.
Nothing in this Agreement 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 3.26 of the Act,
415 ILCS 5/3.26
(2002),
or entity which is not bound by this
13
Agreement,
as provided in Section IV (Applicability).of this
Agreement.
0
•
G.
Enforcement of Agreement
1.
Upon
the
acceptance
of
this
Agreement
by
the
Board,
any
party hereto, upon motion,
may reinstate these proceedings solely
for the purpose of enforcing the terms and conditions of this
Agreement.
This
Agreement
is
a
binding
and
enforceable
order
of
the Board ~nd may be enforced as such through any and all available
means.
2.
Respondent agrees that notice of any
subsequent
proceeding to enforce this Agreement may be made by mail and waives
any requirement of service of process.
The
remainder of this page should be blank
14
0
WHEREFORE,
the
parties,
by
their
representatives,
enter
intQ:.
this
Agreement
and
submit
it
to
the
Board
that
it
may
be
accepted
and
entered.
AGPEETh
FOR
THE
COMPLAINANT:
PEOPLE
OF
THE
STATE
OF
ILLINOIS
by LISA
MADIGAN,
Attorney
General
of
the.
State
of
Illinois
MATTHEW
.
DUNN,
Chief
.
ILLINOIS
ENVIRONMENTAL
Environmental
Enforcement!
PROTECTION
AGENCY
Asbestos
Litigation
Division
BY:
•.
•
BY:
__________________
ROSEMARIE
cAZEAU,
Chiet
JOSEPH
E.
SVOBODA
Environmental
Bureau
Chief
Legal
Counsel
Assistant
Attorney
General
DATE:
_______________________
DATE:
LOR THE RESpONDENT:
CITY
CF
WAUKEGAN
B’~
_______
ITS;
-b11,
r.cL’
4:
I&V
r1
Jrs”c~/
DATE;
.
7j_~tf
15
WHEREFORE,
the parties,
by their representatives,
enter into
this Agreement and submit
it to the Board that it may be accepted
and entered.
AGREED:
FOR THE COMPLAINANT:
PEOPLE
OF
THE
STATE
OF
ILLINOIS
by LISA MADIGAN, Attorney General
of
the
State
of
Illinois
MATTHEW
J.
DUNN,
Chief
Environmental Enforcementf
•
Asbestos Litigatipn D’ isbn
BY:
Assistant Attorney Genera.
DATE:
—
(0
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY
FOR THE RESPONDENT:
CITY OF WAUKEGAN
BY:
ITS:
DATE:
DATE:
_______________
15
RECEJVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
2 62004
PEOPLE OF THE STATE OF ILLINOIS,
by
LISA
MADIGAN,
Attorney General
)
STATE OF ILUNOIS
of
the
State
of
Illinois,
)
•
Pollution
Control Board
Complainant,
PCB No.
01-104
v.
)
(Enforcement
-
Water)
CITY
OF
WAUKEGAN,
a Municipal 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 this case pursuant
to Section 31(c) (2)
of the Illinois Environmental Protection Act
(“Act”),
415
ILCS
5/31(c)
(2)
(2002),
and Section 103.300 of the
Illinois
Pollution
Control
Board
(“Board”)
Procedural
Rules,
35
Ill.
Adm. Code 103.300.
In support of its Motion,
the Complainant
states as follows:
1.
Section 31(c) (2)
of the Act allows the parties in
certain enforcement cases to request relief from the mandatory
hearing requirement where the parties submit to the Board
a
Stipulation and Proposal for Settlement.
Section 31(c) (2)
provides
as follows:
Notice; complaint;
hearing.
•
*
*
*
(c) (2) 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
withthe
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 that a hearing will be held,
the
Board shall cause notice of the stipulation, 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)
2.
Board Procedural Rule 103.300 provides,
in relevant
part,
as follows
(emphasis in original)
Request for Relief from Hearing Requirement
in State
Enforcement Proceeding.
(a)
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 proposed stipulation
and settlement accompanied by a request for relief from
the requirement of a hearing
pursuant to Section
31(c)
(2)
of the Act
.
.
.
.
3.
On April
23,
2004, the same date as this Request,
a
Stipulation and Proposal for Settlement with Respondent was filed
with the Board.
4.
No hearing is currently scheduled in this case and no
third party has filed
a written demand for a hearing.
WHEREFORE,
the Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of the State of Illinois,
respectfully requests relief from the requirement of a hearing
pursuant to Section 31(c) (2)
of the Act.
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Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois
BY:
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188 West Randolph Street,
Suite 2001
Chicago,
Illinois 60601
Tel:
(312)814-2069
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