BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
No. PCB 05-
(Enforcement-Water)
PEOPLE OF THE STATE OF ILLINOIS,
LISA M~DIGAN, Attorney General
of the State
of. Illinois,
Compla±nant,
vs.
CUNAT,
INC.,
an Illinois corporation,
Respondent.
NOTICE OF FILING
TO:
Christopher
D. Oswald
Dorothy Gunn
Mohan, Alewelt,
Prillaman & Adam~
Clerk
One North Old State Capitol Plaza
Illinois Pollution Control Board
Suite 325
Suite.ll—500
Springfield,
IL 62701-1323
James R. Thompson Center
100 W. Randolph Street
Chicago,
IL 60601
PLEASE TAKE NOTICE, that
I have today filed with the Office
of the Clerk of the Illinois Pollution Control Board an original
and nine copies of the Stipulation and Propbsal for Settlement,
an Ag.reed Motion for Relief from the Hearing Requirement,
Notice
of Filing and a Certificate of Service,
a copy of which
is
attached herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
_________________
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Fl.
Chicago,. IL 60601
(312)
814-3816
DATE:
March 15, 2005
)
)
)
)
)
)
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
LISA
MADIGAN,
Attorney
General
of the State of Illinois,
Complainant,
.
vs.
)
No. PCB 05-~~
(Enforcement-
ater)
CUNAT,
INC.,
)
an Illinois corporation,
Respondent.
AGREED MOTION TO REQUEST
RELIEF FROM TH~ HEARING REQUIREMENT
In support
of this Motion, the parties state as follows:
1.
Today,
the People of the State of IllinOis,
filed a
Stipulation and Proposal for Settlement, with the Illinois
Pollution Control Board.
2.
Section 31(c) (2)
of the Illinois Environmental
Protection Act,
(“Act”), 415 ILCS 5/31(c) (2) (2002) provides:
Notwithstanding the provisions
of subdivision
(1)
of this subsection
(c)
,
whenever a complaint .has
been filed on behalf of the Agency or by the
People of the State of Illinois,
the parties may
file with the Board a stipulation and proposal for
settlement accompanied by a request
for relief
from the requirement of a hearing pursuant to
subdivision
(1)
.
.
.
3.
Complainant and Respondent agree that a formal hearing
is not necessary to conclude this matter and wish to avail
themselves of Section 31(c) (2)
of the Act,
415 ILCS
5/31(c) (2) (2002).
BEFORE THE ILLINOIS POLLUTION
CONTROL~9V~~
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
.
v.
)
PCB
CUNAT,
INC.;
.
)
(Enforcement-Water)
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,
the Illinois
Environmental Protection Agency
(“Illinois EPA”), and CUNAT,
INC.
(“Respondent”), have agreed to the making of this Stipulation and
Proposal for Settlement
(“Stipulation”)
and submit
it to the
Illinois Pollution Control Board
(“Board”)
fo~rapproval.
The
parties a~réethat the statement of facts contained herein
represent a fair summary of theevidence and testimony which
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 proceeding regarding the claims asserted in the
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 contest 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.
III.
STATEMENT OF FACTS
A.
Parties
‘
1.
On January 12,
2005,
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 upon the
request
of the Illinois EPA,
pursuant to Section 31 of the Act,
415 ILCS 5/31(2002), against the Respondent.
-2~
2.
The Illinois EPA is an administrative agency of the
State of Illinois,
created pursuant to Section 4 of the Act,
415
ILCS 5/4
(2002)
3’.
At all times relevant to ~he Complaint,
Respondent, was
and is an Illinois corporation that
is authorized to transact
business in the State of Illinois.
B.
Site Description
1.
At all times relevant to the Complaint,
Respondent was
the developer of the Richmond Condominiums development located on
‘the
we’st side of Route
12, Village of Richmond
(“Richmond”),
McHenry County,
Illinois
(“site”)
2.
On January
4,
2002,
the Illinois EPA ‘issued permit No.
2002~HB-5194 to Cunat
to construct a sanitary sewer on the
property .known as the Kensington Manor Condominium Development,
(“the Ri’chmond Condominiums”)
in the Village of Richmond,
Illinois
(“Richmond”)
,
with said system to connect the buildings
on the development site to Richmond’s newly constructed sewer
lateral at
the edge of Cunat’s property line.
Said permit was
issued simultaneously to the Village of Richmond to own and
operate’ such sewer.
3.
On September
8,
2003,
the Illinois EPA,
received a
complaint from the McHenry County Health Department regarding the
discharge
of untreated sewage to the surface
of the ground along
-3-
Route’ 12 in the Village of Richmond.
Richmond’s sewer lateral
located outside of Cunat’s property was incomplete and Untreated
sewage was spilling on the ground surface.
4.
On September
9,
2003, the Illinois EPA inspected the
site and observed that ‘sewage had accumulated in a depression
that was excavated’ for the construction of a lift station..
During the inspection,
accumulated sewage was ‘being pumped from a
wet well to a nearby manhole that connected to an existing
portion of the Village of Richmond’s collection system.
5.
The Complainant believes the source ‘of the sewage was
Cu’nat’s Richmond Condominiums development.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count
I:
Violation
of Sewer Construction Permit:
Violation
o’f Section 12(b)
of the Act,
415 ILCS
5/12(b) (2002),
35
Ill.
Adm.
Code 309.202(a)
and
Special Condition 4 of permit No. 2002-HB-5194.
D.
Admission of Violations
The Respondent represents that it has entered into this
Stipulation for the purpose of settling and compromising disputed
claims without having to incur the expense of contested
litigation.
By entering into this Stipulation and complying with
-4-
its terms,
the Respondent does not affirmatively admit the
allegations of violation within the Complaint and referenced
within Section III.C herein,
and this Stipulation shall not be
interpreted as including such admission.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent,
and any officer, director,
agent,
or employee of the ‘Respondent,
as well
as any successors or
assigns of the Respondent.
The Respondent
shall not raise as a
defense to any enforcement action taken pursuant to this
Stipulation the failure of any of its officers, directors,
agents,
employees or successors or assigns to take such action as
shall be required to comply with the provisions of this
Stipulation.
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities 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:
-5-
In making its orders and determinations,
the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness
of the
emissions,
discharges, or deposits involved including,
but not limited to:
1.
the character and degree of injury to, or
interference with the protection of the health,
gen~ralwelfare and physical property of the
people;
2.
the social’ and economic value of.the pollution
source;
3.
the suitability or ur~suitabilityof 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
reasonabl~nessof reducing or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
,
5.
any subsequ~nt compliance.
In response to these factors,
Complainant states the
following:
1.
The discharge of untreated sewage ‘to the ground posed,
at a minimum,
a threat to human health and the environment while
•exposed to the environment.
2.
There
is’ social and economic benefit to the sewer
construction project.
3.
Operation of the project was suitable for ‘the area
where the discharge. occurred.
-6-
•
4.
Complying with the requirements of the Act, Board
regulations, and permit conditions was both technically
practicable and economically reasonable.
The Respondent believed
it was in complianOe with the requirements
of the Act, Board
regulations and Permit Conditions due to its reliance on
representations made to it by the Village of Richmond in issuing
occupancy permits for residential units
in the Richmond
Condominiums.
5.
Richmond’s
sanitary sewer line from the Richmond
Condominium development has since been connected to the Village
of Richmond’s sewage collection system and Respondent
is now in
compliance.
‘
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
th’e respondent in attempting to comply
with requirements of this Act and regulations
thereunder or to secure relief therefrom as
provided by this Act;
-7-
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 for
achieving 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 agreed to undertake a
“supplemental environmental project,”
which means
an environmentally beneficial project that a
respondent, agrees to undertake in settlement
of. an
enforcement action brought.under this Act,
but
which the respondent
is not otherwise legally
required to perform.
In response to these factors, Complainant states as follows:
1.
The Complainant alleges that Cunat’s use of the
uncompleted sewer was
in direct contravention of the terms of the
construction and operating permit No. 2002-HB-5l94, caused a
discharge
to, the soil surface and thre’atened a discharge of
untreated sewage to waters of the State.
It
appears
the surface
discharge occurred on at least one occasion.
The Respondent has
denied that
it violated the terms of its construction permit, and
denied that its actions were the cause of any discharge for the
-8-
reason that
it was only the construction permittee, believing
Special Condition 4 of said permit applies only to the’ owner/
operator
permittee.
2.
While the Complainant alleges that Cunat violated the
terms of the construction and operating permit No. 2002-HB-5194,
it appears to have done so unwittingly.
Richmond issued occupancy
permits for residential units at the site which Cunat relied upon
as an indication that the utilities were all functioning
properly.
The Respondent denies
it violated construction and
‘operating permit No. 2002-HB-5194.
3.
Complainant is unaware of any economic benefit that may
have accrued to Respondent because of its use of the uncompleted
sewer line.
.4.
The civil penalty requested below should impress upon
Cunat and similarly-situated developers the need to ensure
construction and occupancy of their projects occur in compliance
with environmental laws.
5.
Complainant is presently unaware of prior enforcement
action against Cunat.
6.
Self-disclosure
is not at issue in this matter.
7.
The’ settlement of this matter. does not include
a
supplemental environmental project.
-9-
VIII.
TERMS OF SETTLEMENT
A.
Penalty
Payment
1.
The Respondent shall pay’a civil penalty in the sum of
Three Thousand Five Hundred Dollars
($3,500.00) within thirty
(30)
days from the date the Board adopts and accepts this
Stipulation.
The Respondent stipulates that payment has been
tendered to Respondent’s attorney of record in this ‘matter in a
form acceptable to that attorney.
Further, Respondent stipulates
that said attorney has been directed to make the penalty payment
•
on behalf of Respondent, within thirty
(30)
days from the date
the Board adopts and accepts this Stipulation,
in a manner
‘prescribed’below..
The penalty described in this Stipulation’
shall be paid by certified check, money order or electronic
funds
transfer payable to the Illinois EPA,
designated to the Illinois
Environmental Protection Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. BOx 19276
•
Springfield,
IL 62794-9276
The name and number of thecase
and Respondent’s Federal Employer
Identification Number
(FEIN),36-3263768,
shall
appear on the
check.
A copy of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be
sent to:
.
-10-
Zemeheret Bereket—Ab
•
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 2Oth’Floor
Chicago,
Illinois 60601
2.
Pursuant to Section 42(g)
of the Act,
4l5’ILCS 5/42(g)
(2002),
interest shall ‘accrue on any payment not paid within the
time period prescribed’ above at the maximum rate, allowable
un,der
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,
money order or e1ect~onicfunds
trans’fer, 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:
Cunat,
Inc.
,
Attn: Christopher Zock
5400 West Elm Street,
Suite
110
McHenry, Illinois
60050.
4.
In the event of default
of this Section VIII.A,
the
Complainant shall be entitled to all available relief including,
-11-
,
but not limited to, reasonable costs ofcollection
and reasonable
attorney’s fees.
B.
Future
Us,e
Notwithstanding any other language in this Stipulation to
the contrary, and in consideration of. the mutual promises and
conditions contained in this Stipulation,
including the Release
from Liability contained in Section VIII.D,
below, the Respondent
hereby agrees that this Stipulation may be used against the
Respondent
in any subsequent enforcement actIon or permit
proceeding as proof of a past adjudication of violation of the
Act and the Board Regulations promulgated thereunder for all
violations alleged in the Complaint in this matter,
for purposes
of Section 39(a)
and
(i) and/or 42(h)
of the Act,
415 ILCS
5/39(a) and(±) and/or 5/42(h) (2002).
‘Further, Respondent agrees
to waive any rights to contest,
in any subsequent enforcement
action or permit proceeding,
any allegations that these alleged
‘violations were adjudicated.
C.
Cease and Desist
The Respondent shall cease and desist from future violation.s
of the Act and Board Regulations that were the subject matter of
the Complaint
as outlined in Section I1I.C
(“Allegations of Non-
Compliance”)
of this Stipulation.
,
-12-
D.
Release
from Liability
In consideration of the Respondent’s payment of the Three
Thousand Five Hundred Dollars
($3,500.00) penalty and any
specified costs and accrued interest, and to Cease and Desist as
contained in Section VIII.C and upon the Pollution Control
Board’s acceptance and approval of the terms of this Stipulation
and Proposal for Settlement,
the”Complainant releases, waives and
discharges the Respondent from any further liability or penalties
for violations of the Act and Board Regulations that were the
subject matter of the Complaint herein.
The release set forth
above does not extend to any matters other than those expressly
specified in Complainant’s Complaint filed on January 12,
20,05.
The Complainant reserves,
and this Stipulation is without
prejudice to,
all rights of the State of Illinois against the
Respondent’ With respect to all other matters,
including but not
limited to, the following:
a.
criminal liability;
b.
liability for future violation of state,
federal,
local, and common laws and/or regulations;
c.
liability for natural resources damage arising out of
the alleged violations;
and
d.
liability or claims based on the Respondent’s failure
to satisfy the requirements
of this Stipulation.
•
-13-
Nothing in this Stipulation is intended as a waiver,
discharge,
release, or covenant not to sue for any claim or cause of action,
administrative or judicial,
civil or criminal,
past or future,
in
law or in equity,
which the State of Illinois or the Illinois EPA
may have against any person,
as defined by Section 3.315 of the
Act,
415 ILCS 5/3.315, or entity other than the Respondent.
E.
Enforcement
of Board Order
1.
Upon
th’e entry of the Board’s Order approving and
accepting this ‘Stipulation and Proposal for Settlement,
that
Order is a binding and enforceable order of the Illinois
Pollution Control Board and may be enforced as such through any
and all available me’ans.
2.
Respondent agrees that notice of any subsequent
p±oceedingto enforce the Board Order approving and accepting
this Stipulation and Proposal for Settlement 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 and Proposal for Settlement, 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 Proposal for Settlement
and any Board Order accepting and approving such shall be
severable,
and should any provision be declared by a court
of
-14-
competent
jurisdiction
to
be inconsistent with state or federal
law,
and therefore
unenforceable,
the
remaining
clauses
shall
remain
in
full
force
and
effect’.
-15-
WHEREFORE,
Complainant and Respondent request that the Board
adopt and accept the foregoing Stipulation and Proposal for
Settlement
as written.
PEOPLE OF THE STATE OF ILLINOIS,
LISA.
MADIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental
Enforcement
/
Asbestos Litigation Division
ROS~M~IE
Environmental
Bureau
Assistant
Attorney
General’
‘ILLINOIS ENVIRONMENTAL
,
PROTECTION
AGENCY
DATE:
B(z~~f~c
BY:
________________
DATE:___________
WILLIAM
D.
INGE SOLL
/
Acting Chief Legal Counsel
CUNAT,
INC.,
an Illinois corporatio
,
DATE:
___
Name:
&7~4
Title:
,
e~r(
~per4tr;osm5
G:’Environmental Enforcement\ZBEREKET-AB\Cunat Stipulation
and Proposal for Settlement 12-1O-04.wpd
BY:
-16-
WHEREFORE,
Complainant and Respondent request relief from
the hearing requirement pursuant to Section 31(c)
(2)
of the Act.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW
J.
DUNN,
Chief
•
,
Environmental
Enforcement/
Asbestos Litigation Division
ROSEMARIE
CAZEAU, Chief
Environmental Bureau
BY:
________________
ZEMEHERET BEREKET-AB
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Fl.
Chicago,
Illinois
60601
(312)
814-3816
,
DATE:
March
15,
2005
G:\Environmental
Enforcetnent\Z BEREKET-AB\Cunat
Mot ReliefFrom HearingRequirement 3-l5-05.wpd
CERTIFICATE
OF SERVICE
I,
ZEMEHERET BEREKET-AB,
an Assistant Attorney General,
do
certify that
I caused to be served on this
15th
day of March
2005,’ the foregoing.Notice of Filing, .a Stipulation and Proposal
for Settlement, and an Agreed Motion for Relief from the Hearing
Requirement, upon the persons listed on said Notice by placing
same in an envelope bearing sufficient postage with the United
States Postal Service located
a,t 100 West Randolph Street,
Chicago,
Illinois.
ZEMEHERET BEREKET-AB
G~\Environmenta1Enforcement\Z BEREKET-AB\Cunat NOF & Certificate 3-15-05.wpd
