1. RECEiVEDCLERK’S OFFICE
      2. Pollution Control Board
    1. RECEVVED
      1. Pollution ‘Control Board
      2. RECEIVEDCLERK’S OFFICE
      3. RECEIVEDCLERK’S OFFICE
RECEiVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB22
2005.
PEOPLE OF THE STATE OF ILLINOIS,
STATE OF ILUNOIS
by LISA MAIJIGAN, Attorney
General
)
Pollution Control Board
of the State of Illinois,
Complainant,
•
.
)
PCB No. 04-138
v.
)
(Enforcement
-
Water)
PINNACLE CORPORATION d/b/a
TOWN & COUNTRY HOMES,
an Illinois Corporation,
Respondent.
)
.
•
.
NOTICE OF FILING
TO:
Mr. GlennC.
Sechen
Schain,, Burney., Ross
& Citron, Ltd..
222 North LaSalle Street, Suit.e 1910
Chicago, Illinois 60601-1102
Mr. Bradley Halloran
Hearing Officer
Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chiöago, Illinois 60601
PLEASE TAKE NOTICE that. I have today, February 22, 2005, filed
•with the Office of the Clerk of the Illinois Pollution Control
Board the Motion fOr Leave to Amend Complaint,
First
Amended
Complaint, Motion for Relief from Hearing Requirement, and
Stipulation and Proposal for Settlement, 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:
1A~~
MICHAEL C. PARTEE
. .
Assistant Attorney General
Environmental Bureau/North
.
188 West Randolph Street, Suite 2001
Chicago, Illino±s.60601
Tel.: (312)814-2069
BEFORE THE
•
ILLINOIS POLLUTION
.
CONTROL BOARDRECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
• by LISA MADIGAN, Attorney General
)
•
2005.
of the State of Illinois,
.
.
•
STATEOFILLINOJS
Pollution Control Board
Complainant,
PCB No. 04-138
v.
)
(Enforcement
-
Water)
PINNACLE CORPORATION d/b/a
TOWN
&.
COUNTRY HOMES,
•
an Illinois Corporation,
2
Respondent.
MOTION FOR LEAVE TO AMEND COMPLAINT
NOW. COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, AttorneyGeneral of the State of Illinois, and hereby
moves for leave to amend its Complaint, to add violations which
occurred since this case was filed. This Motion is filed pursuant
to Section 2-616 of the Illinois Code of Civil Procedure, 735 ILCS
5/2-616, and Section .101.500 of the Illinois Pollution Control Board
(“Board”.) Procedural Rules, 35 Ill. Adm. Code 101.500. In support
•of this Motion, the Complainant states as follows:
1. On February 2, 2004, Complainant file.d its Complaint with
the Board.
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• 2.
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In May 2004, after the Complaint was filed, the Illinois
EPA referred to the Attorney General’s Office additional, alleged
violations of the Illinois Environmental Protection Act (“Act”).and
associated regulations which occurred since this case was filed.
3.
Complainant’s
proposed First Amended Complaint was filed
simultaneous with this Motion.
4. The parties •have reached a settlement of all of the
allegations contained’ in the proposed First Amended Complaint and a
‘Stipulatiofl.,~n’d Proposal for Settlement of the proposed First
Amended Comp:laint accompanied by a Motion for Relief from the
Hearing Re~ui’~ejrtentwere also filed with the Board simultaneous with
this Motion.
.
.
5. Section 101.500’ of the BOard Procedural Rules provides,
in relevant ‘part, as follows:
Filing of Motions and Responses
•
(a) The Board may entertain any motion the parties wish
to file that is permissible under the Act or other
applicable law, these rules, or the Illinois Code of
Civil Procedure.
6. Section 2-616 of the Illinois Code of Civil Procedure
sets forth thestandard for amendments to pleadings and provides, in
relevant part, as follows:
Amendments
.
•
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(a)
•
At any time before final judgment amendments may be
• allowed On just and reasonable terms,
. . .
adding new
causes of action
. . .,
and in any matter, either of ‘form
or substance, in any process, pleading, bill of
particulars or proceedings,” which may enable the
•
plaintiff to sustain the claim for which it was int.ended
to be brought
. . .
7. In general, amendments should be liberally allowed at any
time before final judgment unless an opposing party would be
prejudiced as result. See Bank of N. Illinois v. Nugent, 223
Ill.App.3d 1, 13, 584 N.E.2d 948, 956 (2d Dist. 1991)
8. Plaintiff seeks to add violations which occurred since
the case was filed. Plaintiff does not seek to add a new party.
2
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9. The additional violations are not subject to a statute of
limitations. See Pielet Eros. Trading, Inc. v. PCB, 110 ‘Ill.App.3d
752, 758, 442 N.E.2d 1374, 1379 (5th Dist. 1982)
10. No final judgment was entered in this case and no hearing
is currently scheduled.
.
11. Finally, ‘Respondent does .not object to this Motion.
‘WHEREFORE,, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of, Illinois,
respectfully’moves for leave to amend its Complaint to add
violations which occurred since this case was’ filed.
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Respectfully submitted,
PEOPLE OF THE’ STATE OF ILLINOIS,
•
by LISA MAD’IGAN, 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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RECEVVED
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF,.ILLINOIS,
)‘
. .
FEB 222005
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
.
‘
)
STATEOFILLINOIS
Pollution ‘Control Board
Complainant,
.
)
‘
PCB No. 04-138
v.
)
(Enforcement
-~
Water)
PINNACLE CORPORATION d/b/a
‘
TOWN
& COUNTRY HOMES,
)
an Illinois Corporation,
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)
S
Respondent.
)
.
FIRST AMENDED COMPLAINT
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Complainant, PEOPLE OF THE STATE OF ILLINOIS’, byLISA MADIGAN,’
Attorney General of the State of Illinois, complains of Respondent,
PINNACLE CORPORATION d/b/a TOWN & COUNTRY HOMES,” an Illinois
corporation, as follows:
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COtThTTI
CAUSING’, THREATENING OR ALLOWING WATER POLLUTION
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1. This Count is brought by LISA P~ADIGAN,.Attorney General’
of the ‘State of Illinois, on her own motion and,at the request of
the Illinois Environmental Protection Agency (“Illinois EPA”).,
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pursuant. to Section 31. of the Illinois Environmental Protection ‘Act
(“Abt”)
,
415 ILCS 5/31 (20.04)
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2. The Illinois EPA is an agency of the State of Illinois
created by the Illinois General Assembly in Section 4 of the Act,
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415 ILCS 5/4 (2.004)
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and’ charged,”
inter alia,
with the duty of
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enforcing the Act in proceedings before .the Illinois’ Pollution’
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Control Board (“Board”)
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‘‘“:3.’ .~At ‘all times’ releVant to this Count, Respondent,
PINNACLE CORPORATION d/b/a TOWN’& COUNTRY HOMES, was and is an
Illinois corporation authorized to transact business in the State
of Illinois.
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4. At all times relevant to this Count, Respondent was and
is the owner and/or operator of Liberty Lakes, an expansive
coçistruction site located on Gilmer Road just we’st of Fairfield
Road in Wauconda, Lake County, Illinois (“site”), on which
appmbximately ‘644 single-family hQmes and 156 townho~neswill be
built.
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5. Located on’ and adjacent to’ the site are wetland areas.
Located near the site is a tributary of Mutton Creek, which isin
the. Fox River’ watershed.
6. On September 24, 2002, there were a~proximately‘400
acres of land disturbed by Respondent’s construction activities,
including a disturbed wetland, area on the ‘west side of the site.
7.
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On September 24, 2002, there were inadequate.erosion and
silt’controlmeasure’~ at a large portion of the site from which
storm water discharged to the on-site and adjacent wetland areas
‘and to the.nearby tributary of Mutton ‘Creek.’
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8. Also on September 24, 2002, there were hundreds of feet
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of sewer and public water supply pipes installed in excavated:
•trenches at the site.
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9. Based on information from Respondent, Respondent had
also pumped storm water from on-site catch basins into an adjacent
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wetland area.
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10. As of September 24, 2002, Respondent had not submitted a
notice of intent to’ be covered by the general National Pollutant
Discharge Elimination System’permit’for storm water’ discharge
associated wi’th construction activity at the site (“general NPDES
storm water permit”.) prior t’o beginning construction activity.
‘11. As of September 24, 2002, Respondent also had not
obtained sewer and public water supply construction permits from
the Illinois EPA prior to installing sewer and public water supply
pipes in excavated trenches at the site.
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12. On October 3, 2002, Respondent submitted to the Illinois
‘EPA notices of intent to be covered.by the general NPDES storm
water permit. Respondent’s notices of intent stated that the start
of.cónstructiori date ‘was “10/02,” bu,t ,the start of construction
date was, in fact, some’date well before October 2002.
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13. On’October 4, 2002, the Illinois EPA notifi’ed’Respondent
of the site’s coverage under the general NPDES storm water permit
‘for storm water discharges associated with the construction
activities.
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14. On February. 25 and 2.6, 2004, after receiving sewer
construction permi.t applications from Respondent, the Illinois EPA
issued sewer construction permit ños. 2003-IA-55l3-l and 2003-IA-
2945-1, respectively, tO Respondent. Permit no. 2’003-IA-55l3-1
allowed for a temporary lift station consisting of one pump to be
used for an interim period prior to the installation of lift
station utilizing a higher capacity pump. Permit no. 2003-IA-2945.-
1 allowed for the installation of twO replaCement pumps in
3
previously permitted lift stations.
.15. On March 5, 2004, after a rain event, silt-laden and
turbid storm water discharged from the site and entered the nearby
tributary of Mutton Creek.
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16. The silt-laden and turbid storm water discharges from
the site on March 5, 2004, were caused by a lack of erosion and
silt control measures at a large portion of the site.
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17. Also in early March 2004, following a. break in
Respondent’s sewer line, Respondent used septic trucks to pump out
its’sewer and sewage lift’stat,ions and to haul the untreated
cont.ents of the sewer and lift stations to the,Wheaton Sanitary
District for treatment.
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18. ,Respondent is subject to the Act and th~regulations for
water pollution and’ public water supplies promulgated under the Act
by the Board and’the Illinois EPA at Title 35; Subtitles’C and F,
respectively, of the Illinois, Administrative Code.,
19. Section 12(a)’ of the Act, 415 ILCS 5/12(a) (2004),
provides as follows:
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Actions Prohibited.
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No. person shall:
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(a) Cause or threaten or allow the’ discharge of any
contaminants intO the environment of any State so
as to cause or tend to cause water pollution in
Illinois, either alone or in combination with
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matter from other sources, or so as to violate
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regulations or standards adopted by the Pollution
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Control Board under this Act.
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20. Section 3.315 ‘of the Act, 4l5.’ILCS 5/3.315 (2004),
5
‘provides the following definition’:
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“PERSON” is any individual, partnership, co-partnership,
firm, company, limited liability company, corporation,
association, joint stock company, trust, estate,
political subdivision, state agency, or any other legal
entity, ‘or their legal’ ±-epresentative, agent or assigns.
21. Respondent, an Illinois corporation, is. a “person” as
that term is defined in Section 3.315 of the Act.
22. Section 3.165 of the Act, 415 .ILC5 ‘5/3.165 (2004),.
provides the following definition:
“CONTAMINANT” is any solid, liquid, or gaseous matter,
any odor, or any form of energy, from whatever source.
23.
The silt that eroded from the site into the wetland
.areas and trib~1taryof Mutton Creek is.a “contaminant” as that’ term
is defined by Section 3.165 of the Act.
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24. Section 3.545 of’ the Act, 415 ILCS 5/3.545 (2004)’,
provides the following definition:
thermal,“WATER
POLLUTION”chemical, isbiologiCal~uch alterationor
‘radioactiveof’the
physicalproperties1
of any waters of the State, or such discharge of any
contaminant into any waters of the State, as will or is
likely to create a nuisance or render such’waters S
harmful or detrimental or’injurious to public, health,
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.safety’ or welfare. pr domestic’, commercial, industrial,
agricultural, ‘recreational, or .other legitimate uses, or,
to livestock, wild animals, birds,’. fish, or other
aquatic life.
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25.. Section 3.550 of the Act, 415 ILCS 5/3.550 (2004),
provides the following definition:
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“WATERS” means all accumulations of water, surface and
underground, natural, and artificial;
public an,d
private, or parts thereof, which are wholly or partially.
within, flow through, or. border. upon the State.
‘26. ‘The on-site ‘and adjacent wetland areas and tributary of
Mutton Cre’ek are “waters” as. that term i,s defined in Section 3.550.
‘of•theAct’.
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27. By causing, ‘threatening or allowing the discharge of
silt-laden and turbid storm water into wetl~ndareas and the
tributary of Mutton Creek, Respondent caused, thre’atened or allowed
the discharge of a contaminant into the environment.
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28. By causing, threatening or allowing the discharge of a
contaminant into the environment, Res’pondent caused or tended to
caus,e water pollution in Illinois.
29. By causing or tending to cause water pollution in’
Illinois, Respondent violated Section 12(a) of the Act.
WHEREFORE, Complainant,’PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an’ order in favor o~
Complainant and against Respondent,, PINNACLE CORPORATION d/b/a TOWN
& COUNTRY HOMES; on this Count I:
1. Authorizing a hearing in t1iis matter at which time.
Respondent will be required to, answer the allegations herein;
2. Finding that Respondent violated the Act and regulations
as alleged herein;
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3. Ordering Respondent to cease and desist from any further
violations of the Abt and regulations;
4. Asses.sing against Respondent a civil penalty of fifty
thousand dollars ($50,000.00) for each violation of the Act and
regulations, and an additional penalty of ten thousand dollars
($10,000.00) for each day during which each violation continued,
thereafter;
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5.
Awarding to Complainant its costs and reasonable
‘attorney’s .fees; and
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6.
Granting such other relief as the Board deems
appropriate.
COUNT II
CREATING OFFENSIVE WATER CONDITIONS
1-26. Complainant realleges and incorporates by reference
paragraphs
1
through
26 of Count
I as paragraph,s 1 through 26 ,of
this Count II.
. .
27. Section’302.203 of the Board’s
Water
Pollution
Regulations, 35 Ill. Adm. Code 302.203, provides as follows:
Offensive Conditions.
Waters o’f the State shall be free from sludge or bottom
deposits, floating debris, visible; oil, odor, plant or.
• algal growth, color or turbidity of other than natural
origin. The allowed mixing provisions of Section
302.102 shall not b’e used to comply with the provisions
Of this Section.
28. Section 304.106 of the Board’s Water Pollution
Regulations, 35 Ill. ACm. Code 304.106, provides as follows:
Offensive Discharges.
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In addition to the other requirements of this Part, no
effluent shall contain ~ettl’eable’solids, floating
debris, visible oil, grease, scum or sludge solids.
Color, odor and turbidity must be reduced to below
obvious levels.
29. By discharging silt-laden and turbid storm water from
the
site on March
5, 2004, to the tributary of Mutton Creek,
Respondent caused offensive c’onditions.
30. By causing’ offensive conditions, Respondent violated
Sections 302.203 and 304.106 of the Board’s Water Pollution
Regulations.
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31. By violating Sections 302.203 and 304.106 of the BOard’s
Water Pollution Regulations, Respondent also violated Section 12(a)
of the’Act.
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WHEREFORE, Complainant, PEOPLE’ OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of’
Complainant and against Respondent, PINNACLE ‘CORPORATION d/b/a TOWN
&COUNTRY HOMES, on this Coun,t II:
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1. Authorizing a hearing in this matter at which’Lime
Respondent will’ be required to answer the allegations herein;
2. Finding that Respondent violated the Act’and regulations
as alleged herein;
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3. Ordering ‘~espond’ent to cease and desist from,any further
violations of the Act and regulations;
4.
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Assessing against’Respondent a, civil penalty of fifty
thousand dollars ($50,000.00) for each violation of the Act and
regulations, and an additional penalty of ten thousand dollars
($10,000.00) for each day ‘during which each violation continued
thereafter;
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5.’ Awarding to Complainant its costs and reasonable
attorney’s feeC; and
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6. Granting such other relief as the Board deems
appropriate.
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COUNT III
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CREATING A WATER POLLUTION H1~ZARD
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1-18. Complainant realleges’ and incorporates .by, reference’
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paragraphs 1 through 18 of Count I as paragraphs 1 through 18’ of
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this Count III.
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19. Section 12(d) of’ the Act, 415
ILCS 5/12(d) (2004),
provides as follows:
No person shall:,
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(d) Deposit any contaminants upon the land in such
place and manner as to create a water pollution
hazard.
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20-26. Complainant realleges and incorporates by reference
paragraphs 20 through 26 ‘of Count I as paragraphs 20 through 26 of
this Count III.
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,27. By failing to have erosion and silt control measures’at
the s,ite on September 24, 2002, and March 5, 2004, Respondent
created a water pollution hazard.
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28.
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By creating a’ water pollution hazard, Respondent
violated Section 12(d) of the Act.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests ‘that the Board enter an order in favor of
Complainant and against’Respondent, PINNACLE CORPORATION d/b/a TOWN
&. COUNTRY HOMES, on this Count III:
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1.
Authorizing a hearing in this matter at which time
Respondent will be’ required to answer the allegations herein;
2. Finding that Respondent violated the Act and regulations
as alleged herein;
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3. Ordering Respondent to cease and desist from any further
violations of the Act and regulations;
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4. Assessing against Respondent a civ’il penalty of fifty
thousand dollars ($50,dOO.0o) for each violation of the Act and
regulations, and an additiOnal penalty of ten thousand. dollars
9
($10,000.00) for each day during which eaCh violation continued
thereafter;
5.
Awarding •to Complainant its costs and’ reasonable
attorney’s fees; and
6.
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Granting such other relief as the Board deems
appropriate.
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COtJNT IV
CAUSING OR ALLOWING THE CONSTRUCTION OF A SEWER WITHOUT A.PERMIT
1-18.
Complainant realleges and incorporates by reference
paragraphs 1 through 18 of Count I as paragraphs 1’ through 18 of
this Count IV.
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19. Section 12(c) of the Act, 415 ILCS 5/12(c). ‘(2004),
provides as follows:.
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Actions Prohibited.
No person shall:
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(c)
Increase the quantity or strength of any discharge
of contaminants into the’wâters, or construct or
install •any sewer or sewage treatment facility or
any new outlet for contaminants into the waters of
this State, without a permit granted by the Agency.
20-26’. Complainant reallegés and incorporates by reference
paragraphs 20 through’26 of Count I as paragraphs 20 through’26 of
this Count IV.
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27.. Section 309.202(a) of the Board’s Water Pollution
Regulations, 35 Ill. Adm. Code 309.202(a), provides as follows:’
‘Construction Permits.
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‘Except for treatment works or wastewater sources which
have, or will have discharges for which NPDES permits ,are
required, and’for which NPDES permits have been issued
by the Agency:
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(a) No person shall caus’e or allow the construction of
any hew treatment works, sewer or wastewater source
Or cause or allow the modification of any existing’
treatment works,, sewer or”wastewater source without
a construction permit issued by the Agency, except
as provided in paragraph (b).
28. Beginning on a date before September 24, 2002,
Respondent caused or allowed the construction of a sewer without a
construction permit issued by the Illinois EPA.
29. By causing or allowing the construction of a sewer
without a construction permit issued by the Illinois EPA,
Respondent violated Section 12 (c) of the Act and Section 309.202(a)’
of the Board’s Water Pollution Regulations.
‘WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
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respectfully requests that the Board enter an order in favor of
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.Com~1ainantand, against Respondent, PINNACLE CORPORATION d/b/a TOWN
•& COUNTRY
HOMES, on this Count IV:
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1. Authorizing a hearing in this matter at which time
Respondent will’ be required to answer the allegations herein;
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2. Finding that’ Respondent violated the Act and regulations
as alleged herein;
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3. Ordering. Respondent to .cease and desist from any further.
violations of the Act and regulations;
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4. Assessing ag.ai’nst Respondent a civil penalty of fifty’
thousand dollars ($50,000.00) ‘for each violation of the Act and
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regulations, and, an additional penalty often thousand dollars
($10,000.00) for each day during which each violation continued
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thereafter;
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5. Awarding to Complainant its costs and reasonable
attorney’s fee.C; and
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Granting such’ other ‘relief as the Board deems
appropriate.
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COUNTV
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VIOLATING SEWER CONSTRUCTION PERMITS
1-18. Complainant realleges and incorporates by reference
paragraphs 1 through 18 of Count I as pa’ragraphs 1 through 18 of
thi,s Count V.
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19.
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Section 12(b) of’ the Act, 415 ILCS 5/12(b) (2004),
provides as follows:
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Actions prohibited. No’ person shall:
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(b) Construct, install, or operate any equipment,
facility, vessel, or aircraft’ capable of, causing or’
contributing to water pollution, Or designed,to
prevent water pollution, of any type designated by
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Board. regulations, without a permit granted by’ the
Agency, •or’ in violation of any conditions imposed
by such permit.
20-22. Complainant realleges and incorporates by reference
paragraphs 20 through 22 ‘of Count I as’paragraphs 20 through 22 of
thisCountV.
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23. Untreated sewage is a “contaminant” as t,hat term is
defined by Section 3.l65.of the Act.
24. Complainant realleges and incorporates by reference
paragraph 24 of Count I as paragraph24 of this Count V.
25. The discharge of untreated sewage,a contaminant, to
waters would constitute “water pollution” as that term i’s defined
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in Section 3.545 of the Act’.
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26., Respondent’s sewer is ‘designe’d to prevent water
pollution.
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27. Special Condition #4 of sewer construction permit nos.
2003-IA-55l3-l and 2003-IA-2945-l provides ,as follows:
The Permittees shall not pump and haul ‘~ewage from the
tributary service in lieu of this construction permit.
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28’. By pumping and hauling, untreated sewage from its. sewer
and sewage lift stations to the Wheaton Sanitary District for
treatment in early March 2004, Respondent violated Special
Condition #4 of se,wer construction permit nos. 2003-IA-5513-1 and
2003-IA-2945-1.
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29. By violating Special Condition #4 of sewer construction.
permit nos. 2003-IA--55l3-l and 2’003-IA-2945-l’,. Respondent violated
• Section 12(b) of the Act.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of’
Complainant and against Respondent, PINNACLE CORPORATION d/b/a TOWN
& COUNTRY HOMES, on this Count’ V:
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1. Authorizing,a hearing in this matter at which time
Respondent wil~ be required to answer the allegations herein;
2.
,
Finding that Respondent violated the Act and regulations:
as alleged herein;’
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3. Ordering Respondent to cease and desist’from any further,
violations of the ,Act and regulations;
4.
Assessing against Respondent a civil ‘penalty of fifty
thousand dollars ($50,000.00) for each violation of the Act and
13
regulations, and an additional penalty of ten thousand dollars
($10,000.00) for each day during which each violation continued
thereafter;
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5.
Awarding to Complainant its cost’s and reasonable
attorney’s fees; and
6. Granting such other relief as the Board deems
‘appropriate.
COUNT VI
CAUSING, THREATENING OR ALLOWING THE DISCHARGE OF CONTAMINANTS
WITHOUT AN NPDES STORM WATER DISCHARGE PERMIT
1-18. Complainant reallegeC and incorporates by reference
paragraphs 1 through 18 of Count I as paragraphs 1 through 18 of
this Count VI.
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19. Section’ 12(f)’ of the Act; 415 ILCS 5/12(f) (2004),
provides,, in relevant part, .as follows:
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• Actions Prohibited.
No person shall:
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(f) Cause,’, threaten or allow the.dischaicge of any
‘contaminant into the waters of the State, as
defined herein, including ‘but not limited to,
waters to any sewage works, or into any well ,or
from any point source ‘within the State,’without an
NPDES permit for point source discharges is’sued by
the Agency under Section 39(b) of this Act, or in
violation of any term or con’dition’ imposed by ‘such.
permit, or ,in violation of any NP.DES permit filing
requirement established under Section 39(b), or in
violation of any regulations adopted by the,Board
or of any order adopted by the Board with respect
to the NPDES program
. . . .
•
20-26. ‘Complainant realleges and incorporates by reference
paragraphs 20 through 26’ of Count I as paragraphs 20 through 26’ of
14
this Count VI.
‘
27. Section 309.1,02(a) of the Board’s Water Pollution
Regulations, 35 Ill. Adm. Code 309.102(a), provides as follows:
NPDES Permit Required.
(a) Except as in compliance with ‘the provisions of the
Act, Board regulations, and the CWA, and the
provisions and conditions of the NPDES permit
issued to the discharger, the discharge of any
contaminant or pollutant by any person into the
waters of the State from a point source Or into a’
well shall be unlawful.
•
‘
S
28.
.
Beginning on a date before September 24, 2002, until
October 3,2004, when it submitted notices, of intent to be covered
by the general NPDES storm water permit, Respondent caused,.
threatened or allowed the discharge of a contaminant into the’
waters of’the State without an NPDES storm water discharge permit
issued by the Illinois EPA.
29. By causing, threatening or allowing the discharge of a
• contaminant into the waters of the State without’an’NPDES storm
water discharge permit issued by the Illinois EPA, Respondent
violated Section 309.102(a) of the Board’s Water Pollution
Regulations and Section 12(f) of the Act.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of
Complainant and against Respondent, PINNACLE CORPORATION ‘d/b/a TOWN
& COUNTRY HOMES,.
on thi•s Count ,VI:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
‘
2. Finding that Respondent violated the Act and regulations
as alleged herein;
S
‘
15
‘
“‘
3. Ordering Respondent to cease. and desist from any further
violations of the Act and regulations;
4. Assessing against Respondent a civil penalty of t’en
thousand dollars ($10,000.00) for each day during which each
violation continues;
‘ ‘
.
‘
5. Awarding to Complainant its costs and reasonable
attorney’s fees; and
‘
‘
6.’
•
Granting such other relief as the Board deems
appropriate.
‘
•
‘
•
•
COUNTVII
,
‘ ‘‘
.
S
•
‘
VIOLATING NPDES STORM WATER DISCHARGE PERMIT
1-18. Complainant realleges ‘and incorporates by reference
paragraphs 1 through 18 of Count I as paragraphs’l through 18 of
this Count VII.
:
19-27. Complainant realleges and incorporates by reference
paragraphs 1,9 through 27 of Count VI as’paragraphs 19 through 27 of
this Count VII.
‘
,28. Part IV of the general NPDES storm water permit no.
S ‘
ILR107421 provides, in part, as follows:
Storm Water Pollution Prevention Plans.
A storm water pollution prevention plan shall be
developed for each con~tructionsite covered ~y this
permit. Storm water pollution’prevention plans shall be
prepared in accordance with good engineering practices.
The plan shall identify potential sources of pollution
which may reasonably be expected to affect the quality
of storm water discharges associated with construction
site activity from the facility. In ‘addition, ,the plan
shall describe and ensure the implementation of
practices which will be used to reduce the pollutants in
storm water discharges associated with construction site
activity and to assure compliance .with the terms and
16
conditions of this permit.
‘
Facilities must implement
the provisions of the storm water pollution prevention
plan required under this part’a’s a condition of this
permit.
29.. Part VI of the general NPDES storm water permit no.
ILR1O7421’ provides, in part, as follows:
A.
Duty to Comply.
The permittee must comply with all conditions of this
permit. Any pe,rmit noncompliance constitutes a
violation of the Illinois Environmental Protection Act
and the CWA and i•s grounds for enforcement action; for
permit termination, revocation and, issuance, or
modification; or for denial of a permit renewal
application.
• ‘
‘
30. Respondent failed. to implement a storm water pollution
prevention plan on September 24,, 2002, when there ,were inadequate
‘erosion and silt control measures at the site and on March 5, 2004,
when there were a lack of erosion and silt control’measure’s at the
site.
‘
‘
‘
31. By failing to implement a storm water pollution
prevention plan on September 24, 2002, and On March 5, .2004,’
ReCpondent violated Parts IV and VI of..general NPDES storm water
‘permit no. ILR1O7421.
‘
32. By violating Parts IV and VI of general NPDES storm
water permit no. ILR1O7421, Respondent also violated, Section
309.102(a) of the Board’s, Water Pollution Regulations and Section
12(f) of the Act.
‘
,
WHEREFORE,
Complainant., PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor
of Complainant and against Respondent, PINNACLE CORPORATION
d/b/a TOWN & COUNTRY HOMES, on this Count VII:
17
1. Aut’horizing a hearing in this’ matter at which time
Respondent will be required to answer the allegations he.rein;
2. Finding that Respondent violated the Act and
regulations as alleged herein;
‘
3. Ordering Respondent to cease and desist from any
further violations of,the Act and regulations;
-
4.
Assessing against Respondent a civil penalty of ten
thousaRd dollars ($10,000.00) for each day during which each
violation continues;
‘
5. Awarding to Complainant its costs and reasonable
attorney’s fees; and
‘ ‘
6. Granting’ such other relief as the Board deems
appropriate.
. ‘
‘
.
.
S
COUNT VIII
FAILING TO SUBMIT PLANS AND SPECIFICATIONS FOR A PUBLIC WATER
SUPPLY BEFORE CONSTRUCTION
1-18. Complainant realleges and incorporates by ‘reference
paragraphs 1 through 18 of Count I as paragraphs 1 through 18 of
this Count VIII.
.
S
19.
•
Section 15(a) of the ‘Act, 415 ILCS 5/15(a)
‘
(2004),
provides as follows:
‘
Plans’and specific,ations; demonstration of capability.
(a) Owners of. publi,c water supplies, their authorized
‘representative, or legal custodians, shall submit
plans and specifications to the ‘Agency and obtain
written approval before construction of any’
proposed public water supply installations,
changes’, or addition’s is started. Plans and
specifications shall be complete and of sufficient
detail ~O show all proposed construction, changes,
or additiOns that may affect sanitary quality,
18
.
-
mineral quality, or adequacy of the public water
supply; and, where necessary, said plans and
specifications shall be accompanied by supplemental
data as may be required by the Agency to permit a
complete review thereof.
20. Section 3.365 of the Act, 415 ILCS 5/3.365 (2004),
provides, in relevant part, the ‘following definition:
“PUBLIC WATER SUPPLY” means all mains’, pi’pes and
structures through which water is obtained’ and
distributed to the public, including wells and well
,structures, int’akes and cribs, pumping stations,
treatment plants, reservoirs, storage tanks and
appurtenances, collectively or, severally, actually used
or intended for use for the purpose of furnishing water
for drinking or general domestic use and which serve at
least 15 service connections or which regularly serve at
least 25 persons at least 60 days per year
., . .
21. The public water supply pipes installed in excavated
trenches at the site are a. “public water supply” as that term is
defined’in Section 3.365 of the Act..
‘
22. Respondent failed to submit plans and specifications to
the Illinois EPA or to obtain written approval before starting
construction of the: public water supply at the,sitë.
23. By failing to submit ‘plans and specifications to t’he
Illinois EPA or to, obtain written approval before starting
construction of the public water supply at the site, Res’pondent
violated Section 15(a) of the Act.
,
S
WHEREFORE,
Complainant, PEOPLE OF THE STATE’ OF ILLINOIS,
respectfully requests that the Board enter an order in favor o’f.
Complainant and against Respondent, PINNACLE CORPORATION d/b/a TOWN
&
COUNTRY HOMES,
on this Count VIII:
‘ ‘
1. Authori’zing a hearing’in this matter at whichiime
Respondent will be required to’answer the’allegations herein;
19
2. Finding that Respondent violated’ the Act and regulations
as alleged herein;’
‘
‘
3. Ordering Respondent to cease and desist from any further
violations of ‘the Act and regulations;
‘
4. Assessing against Respondent a civil penalty of fifty
thousand dollars ($50,000.00) for each violation of the Act and
regulations, and an additional penalty of ten thousand dollars’
($10,000.00) for each day during which each violation continued
thereafter;
5. Awarding to Complainant its costs and reasonable
attorney’s fees; and
‘
‘
‘ ‘S
6. Granting such other relief as the Board deems
appropriate.
COUNT IX
CAUSING OR ALLOWING THE CONSTRUCTION OR INSTALLATION
OF A PUBLIC WATER SUPPLY WITHOUT.A PERMIT
‘1. This Count is brought by LISA MADIGAN, Attorney General
of the State of Illinois, on her own motion pursuant to’Section 31
of the Act.
‘
,“
‘
‘
2-18. Complainant realleges and incorporates by reference
paragraphs 2’ through 18 of ,Count I as paragraphs 2 through 18 of
this Count IX.
‘
19. Section 18(a) of the,Act, 415 ILCS 5/18(a) (2004),
prov’ides as follows:
.
;
‘
Prohibitions; plugging requirements.
‘
(a)’
.
No person shall:
‘
‘
‘
‘
‘
20
.
(1)
Knowingly cause, threaten or allow the
distribution of water from any public .water
supply of such quality or quantity, as to be.
injurious to human health; or
(2) Violate regulations or standards adopted by
the Agency pursuant to Section 15(b) of.this
Act’ or by the Board under this Act; or
(3)
‘
Construct, install or’ operate any public water
supply without a permit granted by the Agency,
or in violation of any condition imposed by
such permit.
20-26.. Complainant realleges and incorporates by reference’.
paragraphs 20 through 26 ‘of Count I as paragraphs 20 through 2 of
thi,s’ Count IX.
•
27-28. Complainant realleges and incorporates by reference
paragraphs 20 and ‘21 of Coun’t VIII as paragraphs 27 and 28 of this
‘Count IX.
,
‘ ‘
29. Section 602.101(a) of the Board’s Public Water Supply
Regulations, 35 Ill. Adm.’ Code’ 602.101(a), provides, in relevant
part, as follows:’
‘
Construction Permit.
‘
(a) No person shall cause or allow the construction of,
S
,
‘
any new public water supply installation or cause
or allow the change of or addition to’ any existing
public water supply,, without a construction permit
S
,
issued by the Illinois Environmental Protectjon
Agency (Agency)
. . . .
‘
‘
30. Section 652.101(a) of the Illinois EPA’s Public Water
Supply Regulations, 35 Ill. Adm. Code 652.101(a), provides as
S
follows:
‘
‘
Construction Permit Requirements.
(a) Construction permits shall be obtained by the
official custOdian of a water supply prior to
beginning construction of any proposed community
21
water supply and prior to ‘all alterations, changes
S
,
or additions to an existing community water supply
which may affect the sanitary quality, mineral
quality or adequacy of the’ supply including changes
S
pursuant to 25 Ill. Adm. Code 653.115.
31. Beginning on a date before September 24, 2002,
Respondent caused or allowed the construction of a new public water
supply without a construction permit issued by the Illinois EPA.
32. By causing or.allowing’the construction of a new public,
water, supply without a construction permit issued’ by the Illinois
EPA, Respondent violated Section .18(a) Cf the•Act, Section
602.101(a). Of the Board’s Public Water Supply Regulations, and
Section 652.101(a) of the’ Illinois EPA’s Public Water Supply
Regula,tions.
‘
‘
‘
‘
S
WHEREFORE, Complainant, PEOPLE OF THE STATE’ OF ILLINOIS,
respectfully requests that the Board enter an o’rder in favor of
Complainant and. against Respondent, PINNACI~ECORPORATION d/b/a TOWN
&
COUNTRY HOMES,
on this Count IX:
‘
S
1..
Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations h’erein;
2; Finding that Respondent violated the Act and regulations
as alleged herein;
‘
3. Ordering ‘Respondent to cease and desist from any further
violations of the Act and regulations;
‘
4.
Assessing against Respondent a civil penalty of fifty
thousand dollars ($50,000.00) for each violation of the Act and
regulations, and an additional penalty of ten thousand dollars
($10,000.00) for each daydurihg which. each violation’ continued’
22
thereafter;
5.
Awarding to Compl~inant its costs and reasonable
attorney’s fees; and
6. Granting such other relief as the Board deems
appropriate.
‘
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State’ of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement/
Asbestos. Litigation Division
S
BY:
___
ROSEMARI
AZEAU,
S
‘
‘
Environmental Bure,au
Assistant Attorney c~eneral’
OF COUNSEL:
MICHAEL C. PARTEE
Assistant Attorney General
Environmental Bureau/North
188
West Randolph Street, Suite 2001
Chicago, Illinois 60601
Tel: (312)814-2069
.
23
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB
22
2005
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
.
)
STATE OF ILLINOIS
of
the State of Illinois,
)
Pollution Control Board
Complainant,
)
.
.
‘
PCB No; 04-138
v.
)
(Enforcement
-
Water)
‘PINNACLE CORPORATION d/b/a
)
TOWN & COUNTRY HOMES,
.
)
‘
an Illinois Corporation,
Respondent.
‘
)
S
‘ 5
MOTION FOR RELIEF FROM THE HEARING REQUIREMENT.
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGSAN/ Attorney General of the State of Illinois, and heUeby
moves for 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 Cont~o1Board (“Board”) Procedural Rules, 35 Ill.’
Adm.
Code 103.300. In support of this Motion, the.Complainant
states as follows:
S
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 fil,e with the Board a
stipulation and proposal: fo’r 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’de.mand for
hearing within 21 days after receiving the notice. If any
person files a timely written demand for hea’ring, 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)
Qf the ,Act
. . . .
3. On February 2, 2004, Complainant filed its Complaint with
the Board;
‘
.
‘ .
S
4. Simultaneous with the filing of this Motion, Complainant
also ‘filed a Motion for Leave to Amend Complaint in order to add
violations of the Act and associated regulations ‘which occurred
since the’case was filed.,
5.
.
The parties have reached a settlement of all ‘of the
‘allegations contained’in the proposed First Amended Complaint.
6. Therefore, also simultaneous with the ‘filing of this
Motion, a Stipulation and Proposal for Settlement accompanied by a
Motion .for ‘Relief from the ‘Hearing ‘Requirement were filed with the
Board.
‘
‘
7. No final judgment was entered in this case and no hearing
is currently scheduled.
‘
-
2
• 8. Finally,’ Respondent does not object to this Motion.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF’ ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois,
respectfully moves for relief from the requirement of a hearing
pursuant to Section 31(c) (2) of the A’ct an’d Board Procedural Rule
103 .300.
5
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
S
,
188 West Randolph Street, Suite 2001
Chicago, Illinois .60601
Tel.: (312)814-2069’
‘
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FEB 2 2
2005
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney General
)
STAJE OF ILLINOIS
of the State of Illinois,
)
Pollution Control Board
Complainant,
PCB No. 04-138
v.
‘
)
(Enforcement
-
Water)
PINNACLE CORPORATION d/b/a
TOWN & COUNTRY HOMES,
)
S
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, at the request of the
Illinois Environmental Protection Agency (“Illinois EPA”), and the
Respondent, PINNACLE CORPORATION d/b/a TOWN & COUNTRY HOMES, an
Illinois corporation, have agreed to the making of this Stipulation
and Proposal for Settlement (“Stipulation”) and submit it to the
Illinois Pollution Control Board (“Board”) for approval. The
parties agree that the statement of facts contained herein
represents a fair summary of the evidence and testimony that would
be introduced by the. parties if a hearing were held. The parties
further stipulate that this statement of facts is made and agreed
upon for purposes of settlement only and that neither the’fact that
a party has’entered into this Stipulation, nor any of the facts
stipulated herein, shall be introduced into evidence in any other
‘proceSding regarding the claims asserted in the First Amended
Complaint except as otherwise provided herein. If ‘the Board
approves and enters this Stipulation, Respondent agrees to be bound
by the Stipulation and Board Order and not to cQntest their
validity in any subsequent proceeding to implement or enforce their
terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and. of
the parties consenting hereto pursuant to the Illinois
Environmental Protection Act (“Act”), 415 ILCS 5/1,
•
et seq.
(.2002)
II.
AUTHORIZATION
The undersigned representatives for each party certify that
they are fully authorized’ by.the party whom they represent to enter
into the terms and conditions of this Stipulation and to legally
bind them to it. This Stipulation may be signed in counterparts,
all of’which shall be considered one agreement.
III.
STATEMENT OF FACTS
A. Parties
1. On February’2, 2004, a Complaint was filed on behalf of
the People of the State of Illinois, by Lisa Madigan, Attorney~
General of the State of Illinois, on her own motion and at the
2
request of the’ Illinois EPA against Respondent pursuant to Section
31 of the Act, 415 ILCS 5/31 (2002)
3. A First Amended Complaint was filed simultaneous with
this Stipulation.
4. 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)
5. At all times’ relevant to the First Amended Complaint,
Respondent, PINNACLE CORPORATION d/b/a TOWN & COUNTRY HOMES, was
and is an Illinois corporation in good standing.
‘B. Site Description
1. Respondent is the developer of Liberty Lakes, a
residential development located on Gilmer Road just west of
Fairfield Road in Wauconda, Lake County, Illinois (“site”), where
approximately 644 single-family homes and 156 townhomes will be
built.
2.. Complainant contends that, as of September 24, 2002,
Respondent’s construction activities had disturbed approximately
400 acres of land and that Respondent had installed hundreds of
feet of sewer and public water supply pipes in excavated trenches
at the site. Respondent contends that its construction activities
disturbed less than 200 acres of land.
‘3.
‘
Complainant contends that, before commencing these
construction activities at the site, Respondent did not obtain’ a
general National Pollutant Discharge Elimination System permit for
3
storm water discharge associated with construction activity at the
site’ (“general NPDES storm water permit”) or construction permits
for sanitary sewers and a public water supply at the site, and did
not submit plans and specifications for a public water supp1y.~
Respondent contends that it obtained County storm water permits and
that the County inspected the site. Further, the respondent
contends that the Village inspected the sewer and water lines.
4. Complainant further contends that, after obtaini’ng
general NPDES storm water discharge permits and sewer construction
permits, Respondent violated the terms and conditions of these
permits. Respondent contends that a large storm caused the failure
of the wier in one detention pond said failure being promptly
corrected. Respondent further contends that a third party utility
company contractor punctured a sewer line while’ augering under a
road endangering the treatment plant and that respondent p~ompt1y
located and repaired the punctured sewer line.
C. Allegations of Non-Compliance ‘ ‘
S
Complainant contends that. the Respondent violated the
following provisions of the Act and regulations:
Count I:
Causing, threatening or allowing water
pollution in viOlation of Section 12(a) of the
Act (415 ILCS 5/12(a) (2002));
Count II:
Creating offensive discharges in violation of
Section 12(a) of the Act and Section 304.106
of the Board’s Water Pollution RegulatiOns (35
‘Ill. Adm. Code 304.106);
~Count III:
Creating offensive conditions in violation of
Section 12(a) of the Act’ and Section 302.203
of the Board’s Water Pollution Regulations (35
4
Ill. Adm. Code 302.203);
Count IV:
Creating a water pollution hazard in violation
of Section 12(d) of the Act (415 ILCS 5/12(d)
(2002)
Count V:
Causing or allowing the construction of a
sewer without a permit in violation of Section’
12(c) of ,the Act (415 ILCS 5/12(c) (2002)) and
Section 309.202(a) of the~Board’s Water
Pollution Regulations (35 Ill. Adm. Code
309.202(a));
Count VI:
Violating sewer construction permits in
violation of Section 12(b) of the Act (415
ILCS 5/12(b) (2002)) and Special Condition #4
of construction permit nos. 2003-IA-2495-1 and
2.003-IA-55l3-l;
Count VII:
Causing, threatening or allowing the dis’charge
of contaminants without an NPDES storm water
discharge permit in’ violation of Section 12 (f)
of the Act (415 ILCS 5/12(f) (2002)), and
S
Section 309.102(a) of the Board’s Water
Pollution Regulations (35 Ill. Adm. Code
309.102(a));
Count VIII:
Violating NPDES storm wa~ter discharge permit
in violation o’f Section 12(f) of the Act,
Section 309.102(a) of ‘the Board’s Water
Pollution Regulations (35 Ill. Adm.. Code
.309.102(a)), and permit no. 1LR107421;
Count IX:
Failing to submit plans and specifications’ for
a public water supply before coUstruction in
violation of Section 15(a) of the Act (415
ILCS 5/15(a) (2002)); and
Count X:
Causing or allowing’the construction or
installation of a public water Supply without
a permit in violation of Section 1.8(a) of the
Act (415 ILCS. 5/18(a) (2002),.), Section
602.101(a) of the Board’s Public Water Supply
Regulations (35 Ill. Adm. Code 602.101(a)),
and Section 652.101(a) of the Illinois EPA’s
Public Water Supply Regulations (35 Ill. Adm.
Code 652.101(a))’.
‘
‘
5
D. Non-Admission of Violations
The Respondent neither admits nor denies the violations
alleged in the First Amended Complaint filed in this matter and
referenced herein.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent, and any officer, director,
agent,
employee or servant of the Respondent, as well as any successors or
assigns of the Respondent’. The Respondent shall not raise as a
defense to any enforcement action taken pursuant to this
Stipulation the failure ‘of any of its officers or agents to take
such action as ‘shall be required to comply with the provisions of
this Stipulation.
1.
No change in ownership, corporate status or operator of
the site shall in any way alter the responsibilities of the
Respondent under this Stipulation and Proposal for Settlement. In
the event of any conveyance of title, easement or other interest in
the site, the Respondent shall continue to be bound by and remain
liable for performance of all obligations under this Stipulation.
2. ‘The Respondent shall notify each prime contractor to be
retained to perform work required by any Order accepting and
‘
adopting the terms of this Stipulation of each of the requirements
of sa.id Order relevant to the activities to be performed by that
6
contractor, including all relevant work schedules and reporting
deadlines, and shall provide a copy of this Stipulation and any
Order accepting and adopting the terms of this Stipulation and
Proposal for Settlement to each contractor already retained no’
later than 30 days after the date of filing of this Stipulation.
In addition, the Respondent shall provide copies of all schedules
for implementation
of the provisions of this Stipulation to the
prime vendor(s) supplying the control technology systems and other
equipment required by any Order accepting and adopting ,the terms of
this Stipulation.
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the ~esponsibi1ities of the
Respondent to comply with any other federal, state or local laws or
regulations including, but not limited to, the Act and the Board
regulations, 35 Ill. Adm. Code, Subtitles A through H.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ‘ALLEGED NON-COMPLIANCE
Section, 33(c) of the Act, 415 ILCS 5/33 (c) (2002)
,
provides as
follows:
In making its orders and determinations, the Board shall
take into consideration all the facts and circumstances
bearing upon the reasonableness of the emissions,
discharges, or deposits involved including, but not
limited to:
7
1. the character and degree of’ injury to, or
interference with’ the protection of the health, general
welfare and physical property of the people;
2. the social and economic value of the pollution,
source;
3. the ‘suitability or unsuitability of the pollution
source to the area in which it is located, including the
question of priority of location in the area involved;
4.’ the technical practicability and economic
reasonableness of reducing’ or eliminating the emissions,
discharges or deposits resulting from such pollution
sOurce; and
5. any subsequent compliance.
In response to these factors, the parties state the following:
1. Complainant contends that ‘the environment was threatened
and at least temporarily harmed, and the Illinois EPA’s information
gathering responsibilities hindered by the Respondent’s violations.
‘Respondent contends that the environment was threatened by reason
of lack of permits, but was not harmed.
2. There is social and economic benefit to Respondent’s
construction activities at,the site.
3. The construction activities are suitable for the area in
which they are occurring provided that the terms and conditions of
all applicable environmental permits issued to Respondent are
complied with.
4.
‘
Obtaining and complying with general NPDES storm water
discharge permits and sewer and public water supply construction
permits was and is both technically practicable and economically
reasonable.
8
5. Respondent subsequently complied with the Act and the
Board Regulations.
S
VII.
CONSIDERATION
OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h) (2002), provides as
follows:
In determining the appropriate civil penalty to be
imposed under
. . .
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 respondent in attempting to comply .with
requirements of. this Act and regulations thereunder or to
secure relief therefrom as provided by this Act;
.3. any economic benefits accrued by the respondent
because of delay in compliance with requirements, in
which case the economic benefits shall be determined by
the lowest cost alternative forachieving compliance;
4.
,
the amount of monetary penalty which will serve to
deter’further violations by the respondent and to
otherwise aid in enhancing voluntary compliance with this
Act by the respondent and other persons similarly subject
to the Act;
5. the number, proximity in time, and gravity of
previously adjudicated violations of this Act by the
respondent;
6. whether the respondent voluntarily ‘self-disclosed,
in ,acCordance with subsection i ‘of this Section, the non-
compliance to the Agency; and
7. whether the’respondent has ag,reed to undertake a
“supplemental environmental project,” which means an
environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement
9
action brought under this Act, but which the respondent
is not otherwise legally required to perform.
,
‘In response to these factors, the parties state as fOllows:
1. The Complainant contends that the Respondent failed to
obtain required permits for storm water discharges and installation
of sanitary sewers an’d a public water supply prior to initiating
‘construction and violated provisions of its storm water discharge
and sanitary sewer permits once such permits were obtained. The
complaint contends that the violations began on or around’September
‘24, 200.2, and were individually resolved at various times over the
following two years. Respondent contends that it obtained Co.unty
storm water permits and that t’he County inspected the site.
Further, the respondent contends that the Village inspected the
sewer and water lines and that all necessary state permits were
obtained within 5 months.
2. Respondent ,was diligent in attempting to come back into
compliance wit’h the Act, Board regulations and applicable federal
regulations, once the Illinois EPA notified it of its
noncompliance.
.
3. On or aboUt October, 2002, Respondent hired an erosion
,
control consultant to assist in coordinating erosion control
measures on an ongoing basis. This has resulted in ‘an increase to
$700,000.00 for erosion control in the project budget since the
erosion control consultant was hired.
10
4. ‘Complainant has determined, based upon the specific facts
of this matter, that a penalty of Eighty Thousand Dollars
($80,000.00) will serve to recover any economic benefit accrued by
the Respondent, to deter further violations and aid in future
voluntary compliance with the Act, regulations thereunder, and
permit conditions.
5. The Complainant is not aware of previously adjudicated
violations of the Act by the Respondent, and Respondent represents
that it does not have any previously adjudicated violations of the
Act.
‘
6.
,
Self-disclosure is not at, issue in this matter.
7. The settlement of this matter does not include a
supplemental environmental proj ect.
VIII.
TERMS OF SETTLEMENT
A. Penalty Payment
1. The Respondent shall pay a total civil penalty in the sum
of Eighty Thousand Dollars ($80,000.00). Payment shall be made as
follows:
a.
Payment in the amount of Forty Thousand Dollars
($40,000.00) shall be made by certified check, money
order or wire transfer payable to the “Illinois EPA,”
designated for deposit in the “Environmental Protection
Trust Fund,”.and sent to the following address within 30
11
days from the date the Board adopts and accepts this
Stipulation:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East.
P.O. Box 19276
Springfield, Illinois 62794-9276
The.case name and number, and Respondent’s Federal
Employer Identification
Number (“FEIN”), 36-321732, shall
appear on the certified check, money order or wire
transfer. A copy of the certified check or money order
and the transmittal letter, or a copy of the wire
transfer receipt, shall be sent to:
:
Michael C. Partee
,
Assistant Attorney General
.
Environmental Bureau/North
188 West Randolph Street,’ Suite 2001
Chicago, Illinois 60601
Charles Gunnarson
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
‘
Springfield, Illinois 62794-9276
b.
Payment
in the amount of Twenty Thousand Dollars
($20,000.00) shall be made by certified check, money
order or ,wire transfer payable to the’ “Illinois EPA,”
designated for deposit in the “Hazardous Waste Fund,” and
‘sent to the following address within 30 days from the
date the Board adopts and accepts this Stipulation:
12
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
The case name and number, and Respondent’s FEIN shall
appear on the certified check, money order or wire
transfer. A copy of the certified check or money order
and the transmittal letter, or a copy of the wire
transfer receipt, shall be sent to:
Michael C. Partee
Assistant Attorney General
‘
Environmental Bureau/North
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
Charles Gunnarson
Assistant Counsel
Illinois’ Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
c. Payment in the amount of Twenty Thousand Dollars
($20,000.00) shall be made by certified check or money
order payable to the “Illinois Attorney General’s
‘Projects and Court Ordered Distribution Fund (801 Fund),”
and sent to the following address within 30 days from the
date the Board adopts and accepts this Stipulation:
Michael C. Partee
Assistant Attorney General
Environmental Bureau/North
‘
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
13’
‘
.
The case name and number, and Respondent’s FEIN shall
also appear on this certified check or money order.
2~ Pursuant to Section 42(g) of the Act, 415 ILCS 5/42,(g)
(2002), interest shall accrue on any payment not paid within the
?ime period prescribed above at the maximum rate allowable under
Section 1003 (a) of the Illinois Income Tax Act, 35 ILCS 5/1003
(2002)
.
Interest on any unpaid payment shall begin to accrue from
the date the payment is due and’ continue to accrue until the date
payment is received. When partial payment(s) are made, such
partial
payment
shall be first applied to ‘any interest on unpaid
payment then due and owing. All interest on payment owed shall be
paid by certified check or money order, payable to the Illinois
EPA, designated to the Illinois EnvirOnmental Protection Trust Fund
and delivered to the address and in the manner described above.
3.
‘
For purposes of payment and collection, Respondent may be
reached at the following address:
John ‘McFarland
Vice President
Town and Country Homes
S
1806 South Highland Avenue
Suite 100
Lombard, Illinois 60148
4. In the event of default of this Section VIII.A, the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney’s fees.
14
B. Future Use
Notwithstanding any other language in this Stipulation to the
contrary, the Respondent agrees that this Stipulation may be used
against the Respondent in any subsequent enforcement action as
proof of a past adjudication of violation of the Act and the Board
Regulations promulgated thereunder for all violations alleged in
the First Amended Complaint in this matter, for purposes of
Sections 39(a) and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a)
and Ci) and/or’5/42(h)
(2002).
‘
Further, Respondent agrees to waive
any rights to contest, in any subsequent enforcement action, any
allegations that these alleged violations were adjudicated.
‘C. 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 Respondent’s site which is the subject of this Stipulation, at
all reasonable times for the purposes of carrying out inspections.
In conducting such inspections, the Illinois EPA, its employees and
representatives, and the Attorney General, her employees and
representatives may take photographs, samples, and collect
information, as they deem necessary.
15
D. Cease and Desist
.
The Respondent shall cease and desist from future violations
of the Act and Board regulations that were the subject matter of
the First Amended Complaint as outlined in Section III.C. of this
Stipulation.’
.
‘
E. Release from Liability
In consideration of the Respondent’s payment of the $80,000.00
penalty and upon the Board’s acceptance and approval of the terms
of this Stipulation,
the Complainant releases, waives and
discharges the Respondent from any further liability
or penalties
for violations
‘of
the Act and regulations that were the subject
matter of the First Amended Complaint herein.
The release set
forth above does not extend to
any matters other than those
expressly specified in the First Amended ‘Complaint filed
simultaneous with this Stipulation.
The Complainant reserves, and
this Stipulation ‘i’s 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 Stipulation.
16
Nothing in this Stipulation is intended .as
a
waiver, discharge,
release, or covenantnot to sue for any claim or cause of action,
administrative or ‘judicial, civil or criminal,, past or f’uture, in
law or in equity, which the State of Illinois or the Illinois EPA
may have against.any person, as defined by Section 3.315 of the,
‘Act, 415 ILCS 5/3.315. (2002), or entity other than the Respondent.
F. Enforcement of Board Order
‘
S
‘
1. Upon the entry of the Board’s Order approving and
accepting this Stipulation, that Order .is a binding and enforceable
order of the Board and may be enforced as such through any and all
available means.
S
2: Respondent agrees that notice of any subsequent
proceeding to enforce the Board Order approving and accepting this
Stipulation may be made by mail and waives any requirement of
service of process.
3. The parties agree that, if the .Board does not approve and
accept ‘this Stipulation, then neither party is bound by the terms’
herein.
,
‘
4. It is the intent of the Complainant and Respondent that
the provisions of this Stipulation and any Board Order accepting
and approving such shall be severable, and should any provision be
declared by a court of competent jurisdiction to be inconsistent
with state or federal law, and therefore unenforceable, the
remaining clauses shall remain in full force ‘and effect.
17
WHEREFORE, Complainant and Responden.t request that the Board
adopt and accept the foregoing Stipulation as written.
PEOPLE OF THE STATE OF ILLINOIS,
‘
.
ex
rel.
LISA MADIGAN, Attorney General
of the State of Illinois
MATTHEW J. DUNN,
Chief
Environmental ,Enforcement/
Asbestos Litigation Division
‘
BY:
j~
~
//3(O?I~ S
ROSEMARIE CAZEAU,
,
‘
Environmental Bureau/North
‘‘
Assistant Attorney General
ILLI
0 S
ENVIRONMENTAL PROTECTION AGENCY
EY~
Z-z~Z9~4~
.
DATE:_______
J~seph E.
S~o.boda~~..~L
‘
‘
‘
hief. Legal .Couns’e1v’ “
PINNACLE CORPORATION d/b/a TOWN
& ‘COUNTRY HOMES
BY:
‘
‘
DATE:
‘I
/ ~
PRINTED NAME:_________________
TITLE:.
~2T~”O
18
CERTIFICATE OF SERVICE’
It is hereby certified that true and correct copies of Motion
for Leave to Amend Complaint, ‘First Amended Complaint, Motion for
Relief from Hearing Requirement, Stipulation and Proposal for
Settlement, and Notice
of Filing
were mailed, first class postage
prepaid, to the persons listed on the Notice of Filing on February
22, 2005.
‘
S
S
____
S
MICHAEL C. PARTEE
It is .hereby certified that’ the originals plus nine (9)
double-sided copies of the’ foregoing were hand-delivered to the
following person.on February 22, 2005:
5’ ‘
Pollution Control Board, Attn: Clerk
James R. .ThOmpson Center
100 West Randolph Street, Suite 11-500
Chicago’, Illinois 60601
.
BY:
__
MICHAEL C. PARTEE

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