BEFORE THE ILLINOIS POLLUTION CONTROL BOARRECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
APR 122005
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
PCB 04-225
v.
)
(Enforcement
—
Water)
pRAIRIE
LANE
DEVELOPMENT,
L.L.C.,
Respondent.
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on April 12, 2005, the People of
the State of Illinois filed with the Illinois Pollution Control
Board a Stipulation
and Proposal for Settlement and Motion for
Relief from Hearing Requirement, true and correct copies of
which are attached and hereby served upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Illinois
JE IFERJA. TOMA.S
ssistant Attorney General
Environmental Bureau
188 W. Randolph Street, Suite 2001
Chicago, Illinois 60601
(312) 814-0609
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Curtis R. Tobin, II
Tobin & Ramon
530 S. State Street, Suite 200
Belvjdere,
Illinois
61008-3747
Charles Gunnarson
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
• 100 W. Randolph Street
Chicago, Illinois 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
REC~JVED
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S OFFICE
•
•APR122005
Complainant,
)
STATE OF ILLINOIS
Pollution Control Board
PCB 04-225
v.
)
(Enforcement
—
Water)
PRAIRIE
LANE
DEVELOPMENT,
L.L.C.,
•
)
Respondent.
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General of the State of Illinois, and
pursuant to Section 31(c) (2) of the Illinois Environmental
Protection Act (“Act”), 415 ILCS 5/31(c) (2) (2002), moves that
the Illinois Pollution Control Board (“Board”) grant the parties
in the above-captioned matter relief from the hearing
requirement imposed by Section 31(c) (1) of the Act, 415 ILCS
5/31(c) (1) (2002)
.
In support of this motion, Complainant states
as follows:
1. The Complaint in this matter alleges violations of
•SectionS 12 (a)
,
(d) and (f) of the Act, 415 ILCS 5/12 (a)
,
(d)
and (f) (2002), and Section 309.102(a) of the Board regulations,
35 Ill. Adm. Code 309.102(a).
2. Complainant is filing this Motion and a Stipulation
and Proposal for Settlement with the Board.
3. The parties have reached agreement on all outstanding
issues in this matter.
• ••
4~
:•fl~j~agreement is presented to the Board in a
Stipulation and Proposal for Settlement filed this same date.
5. All parties agree that a hearing on the Stipulation
and Proposal for Settlement is not necessary, and respectfully
request relief from such a hearing as allowed by Section
31(c) (2) of the Act, 415 ILCS 5/31(c) (2) (2002)
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
hereby requests that the Board grant this motion for relief from
the hearing requirement set forth in Section 31(c) (1) of the
Act, 415 ILCS 5/31(c) (1) (2002)
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
•
State of Illinois
BY
~
~
£5
J IFER
.
TOMAS
Assistant Attorney General
Environmental Bureau
• 188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: April 12, 2005.
2
••
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~~
PEOPLE OF THE STATE OF ILLINOIS,
)
•
APR 122005
STATE OF ILLINOIS
Complainant,
Pollution Control Board
PCB 04-225
v.
(Enforcement
-
Water)
PRAIRIE LANE DEVELOPMENT,
L.L.C.,
Respondent.
STIPULATION A1’ID 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 PRAIRIE
LANE DEVELOPMENT, L.L.C. (“Respondent”), 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 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
1
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.
2
III. STATEMENT OF FACTS
A.
Parties
• 1. On June 23, 2004,
a
Complaint was filed
on
behalf of
the People of the State of Illinois by Lisa Madigan, Attorney
Generalof 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. The Illinois EPA is an administrative agency of the
• State of Illinois,
created pursuant to Section 4 of theAct, 415
ILCS 5/4 (2002)
3. At all times relevant to the Complaint, Respondent was
and is an Illinois limited liability company that is authorized
to transact business in the State of Illinois.
B.
•
Site Description
1. At all times relevant to the Complaint, Respondent was
developing 72.6 acres subdivided into 57 residential home lots
known as the Prairie Lane Subdivision. The property is located
at the corner of Dawson Lake Road and Caledonia Road,
Timberlane, Boone County, Illinois (“site”)
2. On May 23, 2003, the Illinois EPA inspected the site.
There were disturbed areas at 3573 and 3561 Prairie Road at the
site containing no erosion controls structures to protect
3
unstable surfaces from eroding. A drainage ditch running
between 3569 and 3581 Prairie Road contained noticeable
siltation from erosion and a roadside ditch across from 3569
Prairie Road also contained excessive siltation and was bordered
by disturbed areas containing no erosion control structures.
3. The two drainage ditches, referenced in paragraph 2,
lead to Boone Lake, a private sportsmen’s lake.
C.. Allega.tionsof....Non-Coxnpl.iance...................•.
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count I: Water Pollution, in violation of Section 12(a) of
the Act, 415 ILCS 5/12 (a) (2002)
Count II: Water Pollution Hazard, in violation of Section
12(d) of the Act, 415 ILCS 5/12(d) (2002).
Count III: Violations of National Pollutant Discharge
Elimination System Permit, in violation of
•
Section 12(f) of the Act, 415 ILCS 5/12 (f) (2002)
• and 35 Ill. Adm. Code 309.102(a).
D. Admission of Violations
The Respondent admits to the violations alleged in the
Complaint filed in this matter and referenced herein.
4
E. Compliance Activities to Date
1. The Respondent has obtained coverage for the site
under the general National Pollutant Discharge Elimination
System (“NPDES”) permit for construction site activities.
• 2.
The disturbed areas at the site of concern in this
action have been stabilized, revegetated, and construction has
been completed on those lots.
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.
No change in ownership or corporate status of the
Respondent shall in any way alter the responsibilities of the
Respondent under this Stipulation and Proposal for Settlement.
5
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:
In making its orders and determinations, the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of the
emissions, discharges, or deposits involved including,
but not limited to:
1. the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
2. the social and economic value of the pollution
source;
3.
•
the suitability or unsuitability of the pollution
source to the area in which it is located,
including the question of priority of location in
the area involved;
4. the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
5. any subsequent compliance.
6
In response to these factors, the parties state the
following:
1. The environment was threatened by Respondent’s failure
to control erosion of soils into waters of the State.
2. There is social and economic benefit to the site.
3. Operation of the site is suitable for the area in
which it is located.
4. Obtaining a permit prior to construction at the site
and compliance with its terms is both technically practicable
and economically reasonable.
5. Respondent has subsequently complied with the Act and
the Board Regulations.
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;
7
3. any economic benefits accrued by the respondent
because of delay in compliance with requirements,
in which case the economic benefits shall be
det~rminedby 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, the parties state as follows:
1. The Respondent failed to obtain a permit for
construction site activities prior to beginning construction
activities at the site, and violated provisions of its permit
once such coverage was obtained. The violations began on or
around May 23, 2003, and were resolved at various times in the
following year.
•8
2. Respondent was diligent in attempting to come back
into compliance with the Act and Board regulations once the
Illinois EPA notified it of its noncompliance.
3. Respondent’s economic benefit from noncompliance, was
nominal and the penalty obtained exceeds any economic benefit
received.
4.
•
Complainant has determined, based upon the specific
facts of this matter, that a penalty of Eleven Thousand Dollars
($11,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant’s knowledge, Respondent has no
previously adjudicated violations of the Act.
6.
Respondent did not self-disclose its violations to the
Illinois EPA prior to inspection.
7. The settlement of this matter does not include a
supplemental environmental project.
VIII.
TERMS OF SETTLEMENT
A. Penalty Payment
1. The Respondent shall pay a civil penalty in the sum of
Eleven Thousand Dollars ($11,000.00) within thirty (30) days
from the date the Board adopts and accepts this Stipulation.
The Respondent stipulates that payment has been tendered to
9
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 the case and Respondent’s Federal
Employer Identification Number (FEIN),
~
4401180, shall
appear on the check. If submitting an electronic funds transfer
to the Illinois EPA, the electronic funds transfer shall be made
in accordance with specific instructions to be timely provided
to Defendant prior to the date of the entry of this Stipulation.
A copy of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be
sent to:
10
Jennifer A. Tomas
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., ~ Floor
Chicago, Illinois 60601
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
time 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, money order or electronic
funds transfer, 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:
Prairie Lane Development, L.L.C.
c/o Steven P. Zimmerman, Agent
855 North Madison Street
Rockford, Illinois 61107
4. In the event of default of this Section VIII.A, the
Complainant shall be entitled to all available relief including,
11
but notlimited to, reasonable costs of collection and
reasonable attorney’s fees.
B. Future Use
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(i) 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
violations of the Act and Board Regulations that were the
12
subject matter of the Complaint as outlined in Section III.C
(“Allegations of Non-Compliance”) of this Stipulation.
D. Release from Liability
In consideration of the Respondent’s payment of the
$11,000.00 penalty and any specified costs and accrued interest,
to cease and desist as contained in Section VIII. C and upon the
Pollution Control Board’s acceptance and approval of the terms’
‘of thisStipulation and .P.roposal..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
uiaLt.ers other than those expressly specificd. in Complainant’s
Complaint filed on June 23, 2004. 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
13
d. liability or claims based on the Respondent’s failure
to satisfy the requirements of this Stipulation.
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. Correspondence, Reports and Other Documents
Any and all correspondence, reports and any other documents
required under this Stipulation, except for payments pursuant to
Section Viii.A (“Penalty Payment”) of this Stipulation shall be
submitted as follows:
As to the Complainant
Jennifer A. Tomas
Assistant Attorney General (or other designee)
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
Charles Gunnarson
Assistant Counsel
.
Illinois EPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
14
As to the Respondent
Prairie Lane Development, L.L.C.
c/o Steven P. Zimmerman, Agent
855 North Madison Street
Rockford, Illinois 61107
F. Modification of Stipulation
The parties may, by mutual written consent, agree to modify
the terms of this Stipulation. A request for any modification
shall be made in writing and submitted to the contact persons
identified in Section VIII.E. Any such request shall be made by
separate document, and shall not be submitted within any other
report or submittal required by this Stipulation. Any such
agreed modification shall be in writing, signed by authorized
representatives of each party, and then accompany a joint motion
to the Illinois Pollution Control Board seeking a modification
of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended.
G. Enforcement of Board Order
1. Upon the 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
15
Pollution Control Board and maybe enforced as such through any
and all available means.
2. Respondent agrees that notice of any subsequent
proceeding to 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 competent jurisdiction to be inconsistent with state or
federal law, and therefore unenforceable, the remaining clauses
shall remain in full force and effect.
16
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
ILLINOIS
ENVIRONMENTAL PROTECTION
AGENCY
BY:
WILLIAM D. INGERS
L
Acting Chief Legal Counsel
Prairie Lane Development, L.L.C.
BY:
Name
: -
Title
DATE:
DATE:
BY:
Environmental Burea
Assistant Attorney General
DATE
17
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 MAJIGAN
Attorney General
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental Enforcement
/
Asbestos Litigation Division
BY:
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
WILLIAM D. INGERS L
Acting Chief Legal Counsel
Prairie Lane Development, L.L.C.
BY:
~W:
~JJEff~Y
L~t1
Title:
I fW(3EYt-
t~-L~-~’
DATE:
r~e~
~X
DATE:
(I
F
/~4-’$&b’I,
~
C
Environmental Bureau—
DATE
17
CERTIFICATE OF SERVICE
I, JENNIFER A. TOMAS, an Assistant Attorney General,
certify that on the 12th day of April 2005, I caused to be served
by First Class Mail the foregoing Stipulation and Proposal for
Settlement and Motion for Relief from Hearing Requirement to the
parties named on the attached Service List, by depositing same
in postage prepaid envelopes with the United States Postal
Service located at 100 West Randolph Street, Chicago, Illinois
60601.
(9NNIFE~ A.
4~7~u~
TOMAS
