BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.)
PCB No. 05-200
(Enforcement
-
Water)
GREG RUIDEEN, individually and
d/b/a ROCK RIVER TOWNHOMES and
d/b/a RUDEEN AND ASSOCIATES,
Respondent.
NOTICE OF FILING
TO:
SEE ATTACHED SERVICE LIST
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the Illinois Pollution Control Board by
electronic filing the following Stipulation and Proposal for
Settlement and Motion for Relief from Hearing Requirement, a
copy of which is attached and hereby served upon you.
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Illinois
BY
S
TOMA9
ssistanAtreGera
Environmental Bureau
188 W. Randolph Street, Suite 2001
Chicago, Illinois
60601
(312) 814-0609
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
SERVICE LIST
Greg Rudeen
Rock River Townhomes
9506 Shore Drive
Machesney Park, Illinois 61115
James Day
Assistant Counsel, Division of Legal Counsel
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.)
PCB No. 05-200
(Enforcement
-
Water)
GREG RUDEEN, individually and
d/b/a ROCK RIVER TOWNEOMES and
d/b/a RUDEEN AND ASSOCIATES,
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 31Cc) (2) of the Illinois Environmental
Protection Act ("Act"), 415 ILCS 5/31(c) (2) (2004), 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)Cl) (2004).
In support of this motion, Complainant states
as follows:
1.
The Complaint in this matter alleges violations of
Sections 12(a),
Cd) and (f) of the Act, 415 ILCS 5/12(a),
Cd)
and (f) (2004), 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
3.
The parties have reached agreement on all outstanding
issues in this matter.
4.
This 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) (2004).
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 TLCS 5/31(c) (1) (2004).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
1AV
CA,7
~was0
JITE A. TOMAS
sstant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois
60601
(312) 814-0609
DATE: September 9, 2005.
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V.)
PCB No. 05-200
(Enforcement
-
Water)
GREG RUDEEN, individually and
d/b/a ROCK RIVER TOWNHOMES and
d/b/a RUDEEN AND ASSOCIATES,
Respondent.
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADJIGAN, Attorney General of the State of Illinois, the Illinois
Environmental Protection Agency ("Illinois EPA"), and Greg
Rudeen, individually and doing business as Rock River Townhomes
and Rudeen and Associates, ("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 TLCS 5/1 et
seq.
(2
002)
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 May 23, 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 TLCS 5/31(2002), against the Respondent.
2.
The Illinois EPA is an administrative agency of the
State of Illinois, created pursuant to Section 4 of the Act, 415
ILCS 5/4 (2002).
3.
At all times relevant to the Complaint, Respondent,
Greg Rudeen, was and is an Illinois resident. Respondent has
conducted business under the names Rock River Townhomes and
Rudeen and Associates, unincorporated entities.
B.
Site Description
1.
At all times relevant to the Complaint, Respondent was
the owner and developer of Rock River Townhomes, a residential
development located at the intersection of Clifford Avenue and
Park Ridge Road, Loves Park, Winnebago County, Illinois
("Site").
2.
On May 14, 2004, the Illinois EPA inspected the Site.
There were areas of the site containing no stabilizing or
3
erosion control structures to protect disturbed earth from
eroding. The east side of the Site had evidence of silt-laden
runoff leading to a center drive/parking area. The north area
of the Site had unstabilized soil and erosion trails leading
onto adjacent property. The south side of the Site contained an
unprotected stockpile of earth. The west portion of the
property is located on the banlCs of the Rock River with only a
sea-wall separating the development and the river.
Sediment was
seen on the sea wall; pooled storm water and unstabilized soil
were visible with no silt or erosion controls in place.
3.
Rock River Townhomes had coverage under the general
Nati6nal Pollutant Discharge Elimination System ("NPDES"1) storm
water permit. However, Respondent filed a Notice of Termination
("NOT") for coverage under the NPDES permit on June 25, 2003 and
that termination was granted in July 7, 2003.
Respondent
prematurely sought termination of the NPDES permit for Rock
River Townhomes before demonstrating that the coverage was no
longer necessary.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
Count I:
Water Pollution, in violation of Section 12 of
the Act, 415 ILCS 5/12 (a) (2002).
Count II:
Water Pollution Hazard, in violation of Section
12 of the Act, 415 ILCS 5/12(d) (2002).
Count III:
Violation of NPDES Permit, in violation of
Section 12 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 within Section
III.C herein.
E.
Compliance Activities to Date
1.
All construction activities have been completed on the
Site and it is fully stabilized.
IV. APPLICABILITY
A.
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
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
as shall be required to comply with the provisions of this
Stipulation.
B.
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.
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:
6
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 subseguent compliance.
In response to these factors, the parties state the
following:
1.
The environment was threatened by the Respondent's
violations.
2.
There is social and economic benefit to the Site.
3.
Operation of the Site was suitable for the area in
which it occurred.
4.
Retention of coverage under the NPDES storm water
permit and compliance with its terms was both technically
practicable and economically reasonable.
5.
Respondent has subseguently complied with the Act and
the Board Regulations.
7
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 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
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
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 possessed and then terminated general
coverage under a NPDES permit, and thus likely knew the water
pollution hazards the Site had created. Obtaining an NPDES
permit or coverage under a general NPDES permit prior to and
during the presence of a point source of water pollution is the
primary and essential means Illinois EPA has to ensure that
these sources are properly and adeguately managed to protect
human health and safety. Respondent's Violations occurred from
at least July 7, 2003 through May 14, 2004, 'the period between
the termination of the NPDES permit and the Illinois EPA
inspection.
2.
Respondent was diligent in attempting to come back
into compliance with the Act, Board regulations and applicable
federal regulations, once the Illinois EPA notified it of its
noncompliance.
3.
Respondent may have received economic benefit through
his non-compliance, but this economic benefit is negated by the
civil penalty obtained.
9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of eight thousand dollars
($8,000.00) 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.
Self-disclosure is not at issue in this matter.
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
eight thousand dollars ($8,000.00) within thirty (30) days from
the date the Board adopts and accepts this Stipulation. 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 ("EPTF") and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
10
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
The name and number of the case and Respondent's Social Security
number 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:
Jennifer A. Tomas
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2
0
th
Floor
Chicago, Illinois 60601
James Day
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
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
11
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
EPTF 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:
Mr. Greg Rudeen
Rock River Townhomes
9506 Shore Drive
Machesney Park, Illinois 61115
4.
In the event of default of this Section VIIlLA, the
Complainant shall be entitled to all available relief including,
but not limited 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
12
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
subject matter of the Complaint as outlined in Section TTT.C
("Allegations of Non-Compliance") of this Stipulation.
D.
Release from Liability
In consideration of the Respondent's payment of the
$8,000.00 penalty and any specified costs and accrued interest,
to Cease and Desist as contained in Section VTTT.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 arid 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 May 23, 2005.
The Complainant reserves, and
13
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.
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.
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 facility which is the subject of this
14
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
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.
F.
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
Environmental Bureau
188 W. Randolph St.,
2
0 th
Floor
Chicago, Illinois 60601
James Day
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Charles Corley
Regional Manager
Bureau of Water
Illinois Environmental Protection Agency
4302 North Main Street
Rockford, Illinois 61103
is
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
As to the Respondent
Greg Rudeen
Rock River Townhomes
9506 Shore Drive
Machesney Park, Illinois 61115
G.
Modification of Stipulation
The patties may, by mutual written consent, agree to extend
any compliance dates or 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.F.
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.
H.
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
16
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
Pollution Control Board and may be 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.
17
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
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
BY:
(/cs.
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
4
t
DATE:
z 4
ROBERT A.
MESSINA
Chief Legal Counsel
GREG RUDEEN
BY:
DATE:__
____
Rock River Townhomes
Rudeen and Associates
18
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
CERTIFICATE OF SERVICE
I, JENNIFER
A.
TOMAS, an Assistant Attorney General,
certify that on the 9 th day of September 2005, I caused to be
served
by
First Class Mail the foregoing Stipulation and
ProposUl 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.
NNIEPJA.
TOMAS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, SEPTEMBER 9, 2005
