REC~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
JAN
072005
STATE OF ILLINOIS
VILLAGE OF LAKE BARRINGTON, CUBA
)
Pollution Control
Board
TOWNSHIP, PRAIRIE RIVERS NETWORK,
)
SIERRA CLUB, BETH WENTZEL and
)
CYNTHIA SKRUKRUD,
)
)
Petitioners,
)
)
v.
)
PCB
05-55
)
(3rd
Party NPDES Permit
)
Appeal)
ILLNOIS
ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE DISTRICT OF LAKE
)
COUNTY, ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB
05-58
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THIS FILING PRINTED
ON
RECYCLED PAPER
1
AL PHILLIPS, VERN MEYER,
GAYLE DEMARCO,
)
GABRIELLE MEYER,
LISA O’DELL, JOAN LESLIE,
.)
MICHAEL DAVEY, NANCY DOBNER, MIKE
)
POLITO, WILLIAMS PARK IMPROVEMENT
)
ASSOCIATION, MAT SCHLUETER, MYLITH PARK
)
LOT OWNERS ASSOCIATION, DONALD KREBS,
)
DON BERKSHIRE, JUDY BRUMME, TWIN POND
)
FARMS HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINEY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
(Consolidated)
AGENCY and
VILLAGE OF WAUCONDA,
)
)
Respondents.
)
NOTICE OF
FILING
Dorothy Gunn, Clerk
Bradley P. Halloran
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
James R. Thompson Center, Suite 11-500
100 West Randolph Street
100 West Randolph Street
Chicago, IL
60601
Chicago, IL 60601
SEE
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board
an original and four (4) copies the RESONSE
TO
MOTION TO
COMPEL THE
AGENCY
TO
PRODUCE
THE
VIOLATION
AND
LITIGATION
RECORD of the Illinois
Environmental Protection Agency, a copy ofwhich is herewith served upon you.
~
AGENCY
Sanjay K. Sofat,
Assistant Counsel
Division ofLegal
Counsel
Dated:
January 6, 2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Springfield, Illinois
62794-9276
(217) 782-5544
THIS FILING PRINTED ON
RECYCLED PAPER
2
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN
072005
STATE OF ILLINOIS
VILLAGE OF
LAKE BARRINGTON, CUBA
)
Pollution
Control
Board
TOWNSHIP, PRAIRIE RIVERS NETWORK,
)
SIERRA CLUB, BETH WENTZEL and
)
CYNTHIA SKRUXRUD,
)
)
Petitioners,
)
)
v.
)
PCB 05-55
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
SLOCUM LAKE DRAINAGE DISTRICT OF LAKE
)
COUNTY, ILLINOIS,
)
)
Petitioner,
)
)
v.
)
PCB
05-5
8
)
(3rd
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
THIS
FILING PRINTED ON
RECYCLED PAPER
3
AL PHILLIPS, VERN MEYER, GAYLE DEMARCO,
)
GABRIELLE MEYER, LISA
O’DELL, JOAN LESLIE,
)
MICHAEL DAVEY, NANCY DOBNER, MIKE
)
POLITO, WILLIAMS PARK IMPROVEMENT
)
ASSOCIATION, MAT SCHLUETER, MYLITH PARK
)
LOT OWNERS ASSOCIATION, DONALD KREBS,
)
DON BERKSHIRE, JUDY BRUMME, TWIN POND
)
FARMS HOMEOWNERS ASSOCIATION, JULIA
)
TUDOR and CHRISTINE DEVINEY,
)
)
Petitioners,
)
)
v.
)
PCB
05-59
)
(31.d
Party NPDES Permit
)
Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
(Consolidated)
AGENCY and VILLAGE OF WAUCONDA,
)
)
Respondents.
)
RESONSE TO
MOTION TO COMPELTHE AGENCY TO PRODUCE THE
VIOLATION
AND LITIGATION
RECORD
NOW COMES, Respondent, the Illinois Environmental Protection Agency (“Illinois EPA”
or “Agency”), by one ofits attorneys, Sanjay K.
Sofat, Assistant Counsel and Special Assistant
Attorney General, and pursuant to 35111. Adm. Code
101.500,
101.502, 101.504,
101.614,
101.616,
and
101.618, 101.800,
101.802, the Illinois Code ofCivil Procedures, the Illinois Supreme Court
Rules, and the Hearing Officer’s Order dated December
15,
2004, and hereby submits its Response
to the Slocum Lake Drainage District of Lake County and the Resident Group’s Motion to Compel
the Illinois Environmental Protection Agency to Produce the Violation and Litigation Record.
In
support ofits Response, the Illinois EPA states as follows:
1.
On September
17, 2004, Village of Lake Barrington, Cuba Township,
Prairie Rivers
Network, Sierra Club, Beth Wentzel, and Cynthia Skrukrud filed a third party permit
4
appeal with the Board pursuant to
415 ILCS 5/40(e)(1) and 35 Ill. Adm.
Code
105.204(b).
2.
On September 27, 2004, Slocum Lake Drainage District (“Slocum District”) of Lake
County, Illinois filed a Section 40(e) petition with the Board.
Also, on September
27, 2004, Al Phillips, Vern Meyer, Gayle Demarco, Gabrielle Meyer, Lisa O’Dell,
Joan Leslie, Michael Davey, Nancy Dobner, Mike Politio, Williams Park
Improvement Association, Mat Chlueter, Mylith Park Lot Owners Association, Julia
Tudor, and Christine Deviney (“Resident Group”) filed a Section 40(e) petition with
the Board.
3.
The Slocum District and the Resident Group appeal the Agency’s decision to grant
the Village ofWauconda’s request to modify its National Pollutant Discharge
Elimination System (“NPDES”) permit,
IL 0020109.
4.
Pursuant to
35
Ill.
Adm. Code 105.116, the Agency Record is to be filed with the
Board within thirty (30) days after receipt ofthe petition.
The Agency Record was
timelyfiled with the Board and consists of approximately 2262 pages.
5.
On December 13, 2004, the Illinois EPA filed a motion for leave to amend its Record
to include the transcript ofthe NPDES permit information hearing as part ofthe
Agency Record.
6.
On December
15,
2004, the Hearing Officer granted the Agency’s motion to amend
its record.
7.
On December 22, 2004, the Board received the Slocum District and the Resident
Group’s combine motion to compel the Illinois Environmental Protection Agency to
produce the violation and litigation record for the Village of Wauconda’s wastewater
treatment plant from
1980
to the present.
5
8.
The Agency’s permitting decision in this case only pertains to the Village of
Wauconda’s request to
expand its treatment plant design average flow discharge
from
1.4’million gallons per day (“MGD”) to
1.9 MGD during Phase land to 2.4
MGD in Phase H.
9.
This modifiedpermit issued on August 23, 2004, will expire on November 30, 2005.
10.
The Agency made its decision to issue the modified permit pursuant to Section 39 of
the Act.
11.
Regarding the prior noncompliance with the Act by the applicant, Section
39(a) of
the Act provides that,
“in
making its determinations on permit applications under
this section the Agency ~y
consider prior adjudications ofnoncompliance with this
Act by the applicant that involved a release ofa contaminant into the environment.”
415 ILCS 5/39(a)
(emphasis added).
12.
As is clear from the language,
Section
39(a) only imposes a discretionary obligation
on the Agency to consider the applicant’s prior adjudications ofnoncompliance.
13.
After initial investigation, the undersigned attorney found that one prior adjudication
of noncompliance in the form ofa consent decree was considered during the
permitting decision process.
No other documents related to noncompliance with the
Act by the applicant were considered by the Agency in this case.
14.
Today, the undersigned attorney request the Hearing Officer and the Board to allOw
the Agency to include this consent decree, 99 CH 720, entered by the Nineteenth
Circuit Court on December 13, 2000, as par ofthe previously filed Agency Record.
15.
The SlocumDistrict and the Resident Group, however, demand production of all
violations and litigation records for the Village ofWauconda from
1980 to present.
6
16.
Their demand is irrelevant to this permit appeal and goes well beyond the
requirements of Sections 39 and 40(e)(3) ofthe Act.
17.
The Slocum District and the Resident Group’s demand is irrelevant to the permit
appeal because neither the Agency is required by the Act to
consider all violations
and litigation records from 1980 to present nor did it.
18.
Further, as the Act specifically requires the Board to hear the petition “exclusively on
the basis ofthe record before the Agency”, demanding the introduction ofdocuments
that were not considered by the Agency during the permitting decision process would
not only be inconsistent with the requirements ofthe Act but also be a waste ofthe
Board’s valuable time.
19.
The Agency urges the Hearing Officer and the Board to
DENY the Slocum District
and the Resident Group’s Motion to Compel.
The Agency further urges the Hearing
Officer and the Board to bar the Slocum District and the Resident Group from
seeking information that is clearly outside the scope ofthe subject matter presented
in this permit appeal.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully requests
that the Hearing
Officer and the Board to TAKE NOTICE ofthe consent order and DENY
the Slocum District and the Resident Group’s Motion to
Compel the Illinois EPA to Produce
the Violation and Litigation Record.
7
Respectfully Submitted,
ILLINOIS ENVIRONMENTALPROTECTION AGENCY
By:__________________________
Sanjay K. Sofat
Assistant Counsel
Division ofLegal Counsel
DATED:
January 6, 2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217) 782-5544
THIS
FILING PRINTED
ON RECYCLED
PAPER
8
SERVICE LIST
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer,
Brown, Rowe & Maw, LLP
190
5. LaSalle St.
Chicago, IL 60603
Albert Ettinger
Environmental Law and Policy Center
35 E. Wacker Dr.
Suite
1300
Chicago, IL 60601
William D. Seith
Total Environmental Solutions, P.C.
631
E. ButterfieldRd.
Suite 315
Lombard, IL 60148
Bonnie L. Macfarlane
Bonnie Macfarlane,
P.C.
106 W.
State Rd.
P.O. Box
268
Island Lake, IL
60042
Jay J. Glenn
Attorney at Law
2275
HalfDay Road
Suite350
Banflockburn, IL
60015
THIS FILING PRINTED
ON
RECYCLED PAPER
9
)
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached
RESONSE TO MOTION
TO COMPEL THE
AGENCY TO
PRODUCE THE VIOLATION AND LITIGATION
RECORD upon the person to whom it is directed, by placing a copy in an envelope addressed to:
Dorothy Gunn, Clerk
Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(OVERNIGHT MAIL)
Percy L. Angelo
Russell R. Eggert
Kevin G. Desharnais
Mayer,
Brown, Rowe & Maw, LLP
190 S. LaSalle St.
Chicago, IL
60603
(OVERNIGhT MAIL)
Albert Ettinger
Environmental Law and Policy Center
35
E.
Wacker Dr.
Suite
1300
Chicago, IL 60601
(OVERNIGHT MAIL)
William D. Seith
Total
Environmental Solutions, P.C.
631
E. Butterfield Rd.
Suite 315
Lombard, IL 60148
(OVERNIGHT MAIL)
BradleyP. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, illinois 60601
(OVERNIGHT MAIL)
Bonnie L. Macfarlane
Bonnie Macfarlane, P.C.
106 W. State Rd.
P.O. Box 268
Island Lake, IL 60042
(OVERNIGHT MAIL)
Jay J. Glenn
Attorney at Law
2275 Half DayRoad
Suite 350
Bannockburn, IL 60015
(OVERNIGHT MAIL)
10
and mailing it from Springfield, Illinois on January 6,
2005,’with sufficient postage affixed as
indicated above.
SUBSCRIBED
AND
SWORN TO BEFORE
ME
$‘~~
:..:..:-;.
BRENDA
BOEHNER
this
b’’
‘day ofJanuary, 2005.
~NOTARYPUB~L~.~
~
~1~yQ~~’
Notary Public
THIS FILING PRINTED ON
RECYCLED PAPER
11
I
I
PCB
05—55,58,59
Inadvertently om~tted
—
from 1/7/05 filing:
“Response
to Motion”
IN
THE
CIRCUIT COURT FOR THE NINETEENTH
DICIALRBO~’~JED
LAK~,COUNTY,
ILLINOIS
CLERK’S
OFFICE
CHANCERY DIVISION
PEOPLE OF THE STATE OF ILLINOIS,
JAN
102005
ex rel.
JAMES
E.
RYAN,
STATE OF ILLINOiS
State
of
Illinois,
)
Pollution Control
Board
Plaintiff,
)
99
CH 720
r~.
vs.
)
Lr
VILLAGE
OF WAUCONDA,
an
)
L)~.L~
!‘~
2000
Illinois
municipal
corporation,
Defendant.
)
~i~’~r
,~
CONSENT ORDER
Plaintiff,
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
ex
rel.
JAMES
E.
RYAN,
Attorney
General
of
the
State
of
Illinois,
on
his
own
motion
and
at the request
of
the
Illinois
Environmental
ProtectiOn
Agency
(“Illinois EPA”)
and Defendant,
VILLAGE OF WAUCONDA,
(“Wauconda”)
an
Illinois
municipal
corporation,
have
agreed
to
the
making
of
this
Consent
Order.
These
stipulated
facts
shall
be
the
findings
of
fact
by this Court and the conclusions herein shall be the conclusions of
law by this’Court.
I.
STIPULATION OF USE AND AUTHORITY
The 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 Consent Order andto legally bind the party
they represent to this Consent Order.
This Consent Order 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) (2000)
1
II.
STATE~NTOF FACTS
A.
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 pursuant to the statutory authority
vested in him under Section 42(d) and
(e)
of the Act,
415 ILCS 5/42(d)
and
(e) (2000)
2.
The Illinois EPA is an administrative agency established in
the executive branch of the State government by Section 4 of the Act,
415 ILCS 5/4
(2000),
and charged,
inter
alia,
with the dut~’of
enforcing the Act.
The Illinois EPA is further charged under Section
4 of the Act with the duty to administer and abate violations
of the
National Pollutant Discharge Elimination System (“NPDES”) permit
program under the Federal Clean Water Act
(“CWA”),
33 U.S.C. Section
1342(b)
(7)
3.
Defendant,
the Village of Wauconda
(“Wauconda”)
is an
Illinois
municipal
corporation
located
in
Lake
County,
Illinois;
B.
FACILITY
DESCRIPTION
At all times relevant to this Consent Order, Wauconda
owns
and
opera.tes the Wauconda Wastewater Treatment Plant
(“WWWTP”)
located at
302 Sloctun Lake Road,
Wauconda,
Lake County,
Illinois.
The legal
description of the WWWTP is the Southeast Quarter of Section 26
Township 44N, Range
09E, Lake County,
Illinois.
The WWWT•P provides preliminary,
primary, secondary and tertiary
treatment of wastewater, and consists of a raw sewage pumping station,
aerated grit tank,
comminutor, primary clarifiers, primary effluent
2
pumping stations, bio-packed towers,
solids contact tank,
secondary
clarifiers,
sand filters, chlorine contact tank,
aerobic digesters and
sludge pumps.
-
The WWWTP discharges to
a tributary of the
Fox
River,
a
water
of
the State of Illinois;
as that term is defined in Section 3.56
of the
Act,
415
ILCS 5/3.56(2000).
C.
ALLEGED VIOLATIONS
On June 28,
1999,
the Plaintiff,
People of the State of Illinois,
filed a six-count Complaint against Wa~condaalleging the following
violations.
COUNT
I
WATER POLLUTION: Violation of Section l2~(a)
of the Act,
415 ILCS 5/12(a) (2000)
COUNT
II
VIOLATION OF GENERAL
EFFLUENT STANDARDS:
Violation of Section 12(a)
of the Act,
415
ILCS 5/12(a) (2000), and 35
Ill. Adm.
Code
304.120(c);
COUNT III
VIOLATION OF NPDES PERMIT EFFLUENT LIMITS:
Violation of Sections 12(a)
and
(f)
of the
Act,
415 ILCS 5/12(a)
and
(f) (2000) and
35
Ill. Adm.
Code 309.102(a),
304.141(a), and
304.120(c);
~OUNT
IV
VIOLATION OF NPDES PERMIT REPORTING
REQUIREMENTS: Violation of Section 12(f)
of
the Act,
415 ILCS 5/12 (f) (2000)
,
and 35
Il..
Adm.
Code ‘305.102(a) and
(b);
COUNT V
VIOLATION OF PERFORMANCE CRITERIA:
Violation of Section 12(f)
of the Act,
415
ILCS 5/12(f) (2000)~, and 35
Ill. Adm.
Code
306.303,
306.304 and 306.305(b);
COUNT VI
VIOLATION OF NPDES PERMIT CONDITIONS:
Violation of Section 12(f)
of the Act,
415
ILCS 5/12(f) (2000), and 35 Ill.
Adm. Code
309.146 (a) (1-4)
3
D.
WAUCONDA’S RESPONSE TO THE ALLEGATIONS
Wauconda neither admits nor denies the material allegations
contained in the Complaint.
Wauconda is in the process of upgrading
its WWTP in accordance with the Compliance Directives contained in
Section VII.C. herein.
III.
APPLICABILITY
This Consent Order shall apply to and be binding upon Plaintiff
and Defendant and any official, director,
agent,
employee,
department
or servant of Defendant,
as well
as Defendant’s successors and
assigns. The Defendant shall not raise
as a defense to any ~enforcement
action taken pursuant to this Consent Order the failure of its
officials,
directors,
departments,
agents,. servants or employees to
take such action as shall be required to comply with the provisions of
this Consent Order.
IV.
COMPLIANCE WITH LAWS AND REGULATIONS
This Consent Order in no way affects the ‘Defendant’s
responsibility to comply with any federal,
state or local statutes or
regulations,
including,
but not limited to,
the Act and the Board
RegulationS,
35
Ill. Adm.
Code Subtitles A through H.
V.
SEVERABI
LITY
It
is the intent of the parties hereto that the provisions of
this Consent Order shall be severable
and’ should any provisions be
declared by
a’ court of competent jurisdiction to be inconsistent with
state or federal
law,
and therefore unenforceable, the remaining
4
clauses
shall remain in full force and e~ffect.
VI.
VENUE
The parties agree that the venue of any action commenced in the
Circuit Court for the purposes of interpretation,
implementation and
enforcement of the terms and conditions
of this Consent Order shall
be
in the Circuit Court of Lake County.
VII.
FINAL
JUDGMENT
ORDER
NOW THEREFORE,
in consideration of the foregoing and upon the
consent of the parties hereto,
the Court having considered ‘the
stipulated facts and being fully advised in the premises:
IT
IS
HEREBY
ORDERED,
ADJUDGED AND
DECREED:
A.
JURISDICTION
This
court
has
jurisdiction
of
the
subject
matter
herein
and
of
the parties consenting hereto pursuant to the Act,
415. ILCS 5/1,
et
seq.
(2000)
B.
OBJECTIVE
The objective of this Consent Order is to have an enforceable
order which will assure the protection of the public health,
welfare
and the environment,
and
compliance with theAct
and
Board rules and
regul
at icns
promulgated
thereunder.
C.
COMPLIANCE DIRECTIVES
1.
Wauconda shall undertake and complete certain improvements
to its WWTP in accordance with applicable permits and regulations
designed to:
.
5
a.
Eliminate the hydraulic bottleneck at the headworks
of
the WWTP caused by the limited capacity of the
existing aerated grit tank and screening equipment;
b.
Limit the hydraulic loading to the treatment units
downstream of the headworks, with the exception of
the
Bio Towers;
c.
Conform
with
the
“Basis
of
Design”
report
for
the
WWTP
“Wet Weather Flow Improvements” dated May
1,
2000,
prepared by Devery Engineering,
Inc.,
and the plans
and specifications dated May 10,
2000,
identified as
Job Number 1690,
as amended, approved,
and ~ermitte~
by
the
Illinois
EPA
under
permit number 2000-AB-1966
dated October 11,
2000.
2.
Wauconda shall complete construction of the improvements
referenced in paragraph one above
and
contained in Illinois EPA permit
number 2000-AB-1966 by October
14,
2001.
3.
Wauconda
shall
verify
to
the
Illinois
EPA the dates of the
commencement
of
construction
and
the
completion
and
placement
on-line
of the
improvements
no
later
than
21 days after commencement and
completion of construction.
Such written verification shall ‘be sent
to:
Charles
Gunnarson, Assistant Counsel
Division
of
Legal
Counsel
Illinois
Environmental
Protection
Agency
1021
North
Grand
Avenue
East
Post
Office
Box
19276
Springfield,
Illinois
62794-9276
6
D.
CIVIL PENALTY
1.
Wauconda shall pay the sum of Twenty Thousand Dollars
($20,000.00)
by
certified check or money order made payable to the
Illinois EPA for deposit into the Environmental Protection Trust
Fund.
Payment
shall be made within thirty
(30)
days from the date of entry
of this Consent Order.
The certified check or money order shall be
sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois
62794-9276
The name and number of the case
and
Defendant’s Federal Employer
Identification Number
(“FEIN”) 36-6006136 shall appear on the face
the check or money order.
Further, a copy of the check or money order
shall be sent by first-class mail
to:
Zemeheret Bereket-Ab
Assistant Attorney General
Environmental Bureau
100 West
Randolph
Street,
11th Floor
Chicago,
Illinois
60601
2.
For purposes of payment and collection,
the Village of
Wauconda can be reached at the following address:
Mr. Fred Dierker
.
Village
Administrator
Village
of
Wauconda
101 North Main Street
Wauconda,
Illinois
60084
3.
Pursuant to Section 42(g)
of the Act,
415 ILCS
5/42 (g) (2000),
interest shall accrue on any penalty 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)
(2000)
.
-
7
a.
Interest on unpaid payments shall begin to accrue from
the date the payment
is due and C~fltinueto accrue until date payment
is received;
b.
Where partial paymen:
is made on any
payment
amount
that
is due,
such partial payment shall be first applied to any
interest on unpaid payments then owing; and
c.
All interest on payments owed the Plaintiff shall be
paid by certified check or money order made payable to the
Illinois
Environmental Protection Agency
for deposit into the Environmental
Protection
Trus?
Fund
and
delivered
to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.
0. Box 19276
Springfield,
IL 62794-9276
The name and number of the case and Defendant’s FEIN,
36-6006136 shall
appear on the face of the certified check.
A copy’ of the certified
check and the transmittal letter shall be sent to:
Zemeheret Bereket-A.b
Assistant Attorney General
-
-
Environmental
Bureau
188 West Randolph Street,
20
th
Floor
Chicago,
IL 60601
3.
STIPULATED PENALTIES
‘
If
Defendant
fails
to
complete
the work by October
14,
2001,
Defendant shall pay stipulated penalties of Five Hundred Dollars
($500.00) per day that Defendant fails to complete the work.
All
stipulated penalties shall be paid in the same manner as described in
Section VII.D.
above.
However, payment of stipulated penalties does
not preclude the State from taking other remedies to enforce the terms
of this Consent Order.
8
E.
CEASE
AND DEStST
Defendant shall cease and des’ist from future 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 outline i~iSection II.C.
of this Consent Order.
F.
RIGHT OF ENTRY
In addition to any other authority,
the Illinois EPA,
its
employees and representatives, and the Illinois Attorney General, his
agents
and
representatives,
shall
have
a
right
of
entry
to
Wauconda’s
WWTP at all reasonable times for the purposes of conducting
investigations
to determine compliance with the Act, Board
regulations, and the terms and conditions of this Consent Order.
In
conducting any inspection of Defendant’s WWTP,
the Illinois EPA,
its
employees and representatives and the Illinois Attorney General, his
agents and representatives, may take any photographs or samples as
they deem necessary in order to conduct their investigation.
G.
RETENTION OF JURISDICTION
The Lake County Circuit Court shall retain jurisdiction of this
matter for the purpose of amending,
interpreting, implementing and
enforcing the terms and conditions of the.Consent Order.
H.
COSTS AND EXPENSES
Each party to this Consent Order shall bear its
own
costs and
expenses,
including attorneys’
fees.
‘
I.
FORCE MAJEURE
1.
“Force majeure,” for purposes of this Consent Order,
is
defined as an~’event arising from causes beyond the control of the
Defendant,
of any entity controlled by Defendant,
or of Defendant’s
contractors,
that delays or prevents the performance of any obligation
9
under
this
Consent
Order
despite
Defendant’s
best
efforts
to
fulfill
the obligation.
The requirement that the Defendant
exercise
‘best
efforts to fulfill the obligation” includes using best efforts to
anticipate any potential
force majeure event and best efforts
to
address the effects of any potential force majeure event
(1)
as
it
is
occurring
and
(2)
following
the
potential force majeure event,
such
that the delay is minimized to the greatest extent possible.
“Force
Majeure”
does
not
include
financial
inability to complete the work
described in Section VII.C.
above.
-
2.
If any event occurs or has occurred that may delay the
performance of any obligation under this Consent Order, whether or not
caused by a force majeure event,
the Defendant shall notify the
Illinois Attorney General’s Office
within twenty-four hours of when
Defendant first knew that the event might cause a delay.
Within 20
days thereafter, Defendant shall provide in writing to the Attorney
General an explanation and description of the reasons .for the delay;
the anticipated duration of the delay;
all actions taken or to be
taken to pr~ventor minimize the delay;
a schedule for implementation
of any measures to be taken to prevent or mitigate the delay or the
effect of the delay;
the Defendant’s rationale for attributing such
delay to a force majeure event
if
it intends to assert such a claim;
and a
st,atement
as to whether,
in the opinion of the Defendant,
such
event may cause or contribute to an endangerment to public health,
welfare or the environment.
The Defendant shall include with any
notice all available documentation supporting its claim that.the delay
was attributable
to a force majeure event.
Failure to comply with the
above requirements shall preclude Defendant from asserting any claim
10
for force majeure for that event for the period of time of such
failure
to comply,
and for any additional delay caused by such
failure.
Defendant shall be deemed
to know of any circumstance
of
~.thjchDefendant,
any entity controlled by Defendant or Defendant’s
contractors knew or should have
known.
3.
If Plaintiff,
after a reasonable opportunity for review and
comment,
agrees that
the delay or anticipated delay is attributable to
a force majeure event, the time for performance of the obligations
under
this
Consent
Order
that
are
affected
by the force majeure event
will be extended for such time as
is necessary to complete those
obligations.
An extension of the time for performance of the
obligations affected by the force majeure event shall not,
of itself,
extend the time for performance of any other obligation.
If
Plaintiff,
after a reasonable opportunity for review and comment, does
not agree that the delay or anticipated delay has been or will be
caused by a force majeure event, Plaintiff will notify the Defendant
in writing of its decision.
.
4.
If the Defendant elects to invoke the Dispute Resolution
procedures set forth in Section J, below,
it shall do
so no later than
15 days after receipt of the Plaintiff’s notice.
In any such
proceeding, Defendant shall have the burden of demonstrating by a
preponderance of the evidence that the delay or anticipated delay has
been or will be caused by a force majeure event,
that
the’ duration of
the delay or the extension sought was or will be warranted under the
circumstances,
that best efforts were exercised to avoid and mitigate
the effects of the delay, and that Defendant complied with the
requirements of Paragraphs
1 and 2 above.
If Defendant carries this
11
burden,
the delay at
issue shall be deemed not to be
a violation by
Defendant of the affected obligation of this Consent Order identified
to Plaintiff and the Court.
J.
DISPUTE RESOLUTION
1.
Any
dispute
which
arises
with
respect
to
the
meaning,
application,
interpretation, amendment or modification of this Consent
Order, any report required hereunder,
or
with
respect
to
any
party’s
compliance herewith,
shall
in, the first instance be the subject of
informal negotiations.
If the Plaintiff and Defendant cannot resolve
the dispute within thirty
(30)
calendar days,
however,
it shall be
presented to the Court for appropriate resolution upon written notice
by any party.
The period for negotiations may be extended by mutual
agreement among the parties.
Unless the Plaintiff is seeking an
amendment,
modification, clarification,
interpretation or enforcement
of this Consent Order, Defendant shall file the documents necessary to
notify the Court of the dispute, and thereafter the Court shall order
the parties to file such pleadings as the Court deems necessary and
proper.
If amendment,
modification,
clarification,
interpretation or
enforcement
of’this Consent Order is sought by the Plaintiff,
the
Illinois Attorney General’s Office shall have the responsibility for
filing the necessary papers.
2.
Defendant shall file any petition.with the Court within
fifteen
(15) calendar days after the informal negotiation period for
any extension has expired,
and, where the Plaintiff has the
responsibility of filing,
the Plaintiff
shall petition the Court
within fifteen
(15)
calendar days after the expiration of the informal
negotiation period
(or any extension)
.
-
12
3.
In
any
dispute
resolution
proceeding,
Defendant
shall
have
the burden of showing, by a preponderance of the evidence,
that its
position will adequately protect the public health,
welfare.and the
environment.
4.
The invocation of dispute resolution,
in and of itself,
shall not excuse compliance with any requirement,
obligation or
deadline contained herein,
and stipulated penalties may be assessed
for adjudicated failures or adjudicated noncompliance during the
period of dispute resolution; provided,
however, that nothing herein
shall bar either party from raising any matter in support of
its
position to the Court that the failure or noncompliance is not a
violation pursuant to Section VII.C.
5.
Defendant shall have the burden of proving force majeure by
a preponderance of the evidence.
K.
RELEASE FROM LIABILITY
In consideration of Defendant’s payment of Twenty Thousand
Dollars
($20,000.00)
civil penalty as described in Section VII.D.
herein, Defendant’s commitment to complete
the, work as outlined in
Section VII.C.2. herein, Defendant’s commitment
to refrain from
further violations
of the Act and Board regulations,
and to comply’
with all applicable provisions of this Consent Order, and upon payment
of the penalty required herein,
the State releases, waives and
discharges the Defendant from any further liability or penalties from
violations of the Act which were the subject matter of the Complaint,
‘
upon the payment of all monies owed and completion of all activities
required by Section VII.C.
of this Consent Order.
In the event that
this Consent Order shall become null and void,
there shall be-no
13
release, waiver or discharge from liability or penalties resulting
from
violations
of
the
Act
and
the
Board
Regulations.
However,
nothing in this Consent Order shall be construed as a waiver by
Plaintiff of the .right to redress future or heretofore undisclosed
violation or obtain penalties with respect thereto.
L.
ENFORCEMENT OF CONSENT ORDER
Following the entry of this Consent Order, any party hereto upon
motion
may
move
this
Court
to
enforce
the
terms
and
conditions
of
this
Consent
Order.
The
Plaintiff,
at
its
discretion,
can
enforce
the
terms
of this Consent Order against the Defendant.
This Consent Order
is a binding and enforceable Order of this Court and may be
enforced
as
such
through
any
and
all
available
means.
‘
14
WHEREFORE,
the parties,
by their representatives, enter into this
Consent Order and submit
it to the Court that
it may be approved and
entered.
PEOPLE OF
THE
STATE OF ILLINOIS,
Date:
i.4
Date:
__________
Date:
-
Date:
_____________
ex rel.
JAMES
E.
RYAN,
Attorney General of the
State
of Illinois
MATTHEW
J.
DUNN,
‘Chief
Environmental Enforcement/Asbestos
Litigation Division
f~.
I~
BY:
~
Assistant Attorney General--.
ILLINOIS
ENVIRONMENTAL
PROTECTION
A
CY
BY:
A
BY
~
TITLE:
ENTER:
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15
