BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
)
V.
1
PCB NO. 07-
)
(Enforcement
-
Water)
MEIJER STORES LIMITED PARTNERSHIP,
)
a Michigan domestic limited
)
partnership, and
ROCKFORD
)
CONSTRUCTION CO., a Michigan
domestic corporation,
Respondents
.
)
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 Complaint for Civil Penalties,
Stipulation and Proposal for Settlement, and Motion for Relief
from Hearing Requirement, copies of which are attached and
hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
Sbate of Illinois
xsistant Attorney General
-
Environmental Bureau
188 W. Randolph St.,
2oth Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: July 5, 2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
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Service List
Cynthia Warren
Meijer Corporate Counsel
2929
Walker Avenue, NW
Grand Rapids, Michigan
49544
Barry
LaFreniere
Rockford Construction Company, Inc.
5540
Glenwood
Hills Parkway SE
Grand Rapids, Michigan
49512
James Allen Day
Assistant Counsel, Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794- 9276
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
PCB No. 07-
)
(Enforcement
-
Water)
MEIJER STORES LIMITED PARTNERSHIP,
)
a Michigan domestic limited
)
,
partnership, and
ROCKFORD
)
CONSTRUCTION CO., a Michigan
)
domestic corporation,
)
1
Respondents.
)
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
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)
(2004). 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)
(2004).
2.
Complainant is filing the Complaint with the Board
simultaneous with this Motion and a Stipulation and Proposal for
Settlement.
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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,
~o'mplainant,
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)
(2004)
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
~
I
F
E
R
\
A.
TOMAS
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: July 5, 2006.
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
)
V.
1
PCB NO. 07-
1
(Enforcement
-
Water)
MEI
JER STORES LIMITED PARTNERSHIP,
)
a Michigan domestic limited
)
partnership, and
ROCKFORD
)
CONSTRUCTION CO., a Michigan
)
domestic corporation,
)
1
Respondents.
)
COMPLAINT FOR CIVIL PENALTIES
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, complains of
Respondents, MEIJER STORES LIMITED PARTNERSHIP, a Michigan
domestic limited partnership, and
ROCKFORD CONSTRUCTION CO., a
Michigan domestic corporation, as follows:
COUNT I
WATER POLLUTION
1.
This Complaint is brought 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 request of the
Illinois Environmental Protection Agency ("Illinois EPA")
pursuant to the terms and provisions of Section 31 of the
Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31
(2004), and is an action for civil penalties.
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2.
The Illinois EPA is an administrative agency
established in the executive branch of the State government by
Section 4 of the Act, 415 ILCS 5/4
(2004), and is charged, inter
alia, with the duty of enforcing the Act.
3.
At all times relevant to this Complaint, Respondent
MEIJER STORES LIMITED PARTNERSHIP
("Meijer"), was and is a
Michigan domestic limited partnership.
Meijer is not registered
in Illinois.
4.
At all times relevant to this Complaint, Respondent
ROCKFORD CONSTRUCTION CO.
(\\RCCU),
was and is a Michigan
domestic corporation. RCC is not registered in
Illinois.
5.
RCC was retained by
Meijer to manage construction of a
new
Meijer retail store on 32.29 acres located at 130 South Gary
Avenue, Bloomingdale,
DuPage County, Illinois ("Site"). The
Site is now occupied by
Meijer Store
#198, a retailer of
groceries and general merchandise.
6.
RCC was responsible for construction activities at the
Site including, but not limited to, erosion control at the Site.
7.
On or about January 2, 2001, the Illinois EPA received
a Notice of Intent from
Meijer seeking coverage under the
National Pollutant Discharge Elimination System
("NPDES")
general storm water permit for construction site activities;
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8.
On January 5, 2001, the Illinois EPA granted
Meijer
coverage for the Site under the NPDES general storm water permit
("NPDES permit"), NPDES permit number
ILR105967.
9.
The NPDES permit required, in part, the control of
sediment and erosion at the site.
10. On September 9, 2004, a representative of the Illinois
EPA conducted an inspection of the Site. The Illinois EPA
inspector observed that silt fencing was in place around the
perimeter of the Site and that no storm sewers were present.
The Illinois EPA inspector requested the Storm Water Pollution
Prevention Plan
("SWPPP") for the Site from the Project
Superintendent for RCC and was given an incomplete SWPPP. The
Project Superintendent also failed to provide
any storm water
inspection reports. A complete SWPPP and regular storm water
inspection reports are required by the terms of the NPDES
permit.
11.
On December 29, 2004, the Illinois EPA inspector
again inspected the Site. The inspector observed that the south
and east borders of the Site had either no silt fencing or
inadequately maintained silt fencing. Storm sewers were now in
place at the Site, but lacked proper erosion control.
12. On January 12, 2005, the Illinois EPA inspector again
visited the Site to determine its compliance status. The RCC
Project Superintendent failed to provide a copy of the SWPPP, as
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requested by the inspector, and storm sewers at the Site still
lacked proper erosion control. The Illinois EPA inspector
notified
Meijer's Construction Manager and Director of
Construction of the ongoing noncompliance.
13. On March 23, 2005, two (2) Illinois EPA inspectors
visited the Site at
Meijerls request. The Illinois EPA
inspectors observed that the Site had adequate erosion control,
with only minor maintenance issues remaining.
14.
On August 9, 2005, the Illinois EPA terminated the
NPDES permit for the Site, pursuant to a Notice of Termination
submitted on behalf of
Meijer. In the Notice of Termination,
Meijer stated that the project was completed and stabilized on
been
June 16, 2006, an apparent errant entry that should have
"June 16, 2005."
15. Section 12
(a) of the Act, 415 ILCS 5/12
(a)
(200,
provides as follows:
No person shall:
(a) Cause or threaten or allow the discharge of any
contaminants into the environment in any State so
as to cause or tend to cause water pollution in
Illinois, either alone or in
combination with
matter from other sources, or so as to violate
regulations or standards adopted by the Pollution
Control Board
under this Act.
16. Section 3.315 of the Act, 415
ILCS'5/3.315
(2004),
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 representative,
agent or assigns.
17. Respondent
Meijer, a limited partnership, and
Respondent RCC, a corporation, are
"persons" as that term is
defined in-Section 3.315 of the Act, 415 ILCS
5/3.315 (2004).
18. Section 3.165
of,the
Act, 415 ILCS
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.
19. Silt and eroded soil are "contaminants" as that term
is defined by Section 3.165 of the Act, 415 ILCS
5/3.165 (2004).
20. Section 3.545 of the Act, 415 ILCS
5/3.545
(2004),
provides the following definition:
"Water pollution" is such alteration of the physical,
thermal, chemical, biological or radioactive
properties 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 harmful or detrimental or injurious
to public health, safety or welfare, or to domestic,
commercial, industrial, agricultural, recreational, or
other legitimate uses, or to livestock, wild animals,
birds, fish, or other aquatic life.
21. Section 3.550 of the Act, 415 ILCS
5/3.550
(2004))
provides the following definition:
"Waters" means all accumulations of water, surface and
underground, natural, and artificial, public and
private, or parts thereof, which are wholly or
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partially within, flow through, or border upon this
State;
22. The storm sewers located at the west border of the
Site along Thorn Road travel east along Schick Road and lead to
the Bloomingdale Sewer
system. The
~loomingdale
Sewer System is
a "water" as that term is defined in Section 3.550 of the
Act;
415 ILCS
5/3.550 (2004)
.
23. By causing, threatening or allowing the discharge of
storm water containing silt and eroded soil into the
Bloomingdale Sewer System, Respondents caused, threatened or
allowed the discharge of a contaminant into the environment.
24. By causing, threatening or allowing the discharge of a
contaminant into the environment, Respondents caused or tended
to cause water pollution in Illinois.
25. By causing or tending to cause water pollution in
Illinois, Respondents thereby violated Section 12 (a) of the Act,
415 ILCS 5/12
(a) (2004).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against
Respondents, MEIJER STORES LIMITED PARTNERSHIP, a Michigan
b
domestic limited partnership, and
ROCKFORD CONSTRUCTION CO., a
Michigan domestic corporation, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondents will be
.
required to answer the allegations herein;
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2.
Find that Respondents have violated Section
12(a) of
the Act, 415 ILCS 5/12
(a) (2004)
;
3.
Order Respondents to cease and desist from any further
violations of Section 12 (a) of the Act, 415 ILCS 5/12 (a)
(2004)
;
4.
Assess against Respondents a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act, and
an additional civil penalty of Ten Thousand Dollars ($10,000.00)
for each day of violation;
5.
Order Respondents to pay all costs, pursuant to
Section
42
(f) of the Act, 415 ILCS 5/42
(f)
(2004)
,
including
attorney, expert witness and consultant fees expended by the
State in its pursuit of this
act5on; and
6.
Grant such other relief as the Board deems appropriate
and just.
COUNT
I1
WATER POLLUTION HAZARD
1-21. Plaintiff realleges and incorporates by reference
herein paragraphs 1 through 14 and paragraphs 16 through 22 of
Count I as paragraphs 1 through 21 of this Count
11.
22. Section 12
(d) of the Act, 415 ILCS
5/12
(d)
(2OO4),
provides as follows:
No person shall:
*
*
*
(d)
Deposit any contaminants upon the land in such
place and manner so as to create a water
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pollution hazard.
23.
,By failing to have and maintain adequate erosion and
sediment control measures at the Site, Respondents created a
water pollution hazard as to a water of the State.
24. By creating a water pollution hazard, Respondents
thereby violated Section
12(d) of the Act, 415 ILCS
5/12
(d)
(2004)
.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against
Respondents, MEIJER STORES LIMITED PARTNERSHIP, a Michigan
domestic limited partnership, and
ROCKFORD CONSTRUCTION CO., a
Michigan domestic corporation, for the following relief:
1. Authorize a hearing in this matter at which time
Respondents will be required to answer the allegations herein;
2.
Find that Respondents have violated Section
12(d) of
the Act, 415 ILCS 5/12
(d)
(2004)
;
3.
Order Respondents to cease and desist from any further
violations of Section 12
(d) of the Act, 415 ILCS
5/12
(d)
(2004)
;
4.
Assess against Respondents a civil penalty of Fifty
Thousand Dollars
($50,000.00) for each violation of the Act, and
an additional civil penalty of Ten Thousand Dollars ($10,000.00)
for each day of violation;
5.
Order Respondents to pay all costs, pursuant to
Section
42
(f) of the Act, 415 ILCS 5/42
(f)
(2004), including
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attorney, expert witness and consultant fees expended by the
State in its pursuit of this action; and
6.
Grant such other relief as the Board deems appropriate
and just.
COUNT
I11
NPDES PERMIT VIOLATION
1-21. Plaintiff realleges and incorporates by reference
herein paragraphs 1 through 14 and paragraphs 16 through 22 of
Count I as paragraphs 1 through 21 of this Count
111.
22. Section 12
(f) of the Act, 415 ILCS
5/12
(f)
(2004)
,
provides, in relevant part, as follows:
No person shall:
Cause, threaten or allow the discharge 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
issued by the Agency under Section
39(b) of this
Act, or in violation of any term or condition
imposed by such permit, or in violation of any
NPDES 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..
.
23.
By
failing to adequately implement the SWPPP for the
Site,. failing to have a copy of the SWPPP available at the Site,
and failing to conduct required inspections at the Site,
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Respondents caused, threatened or allowed the discharge of storm
water containing silt and sediment into the Bloomingdale Sewer
Sys
tem.
24. By causing, threatening or allowing'the discharge of
storm water containing silt and sediment into the Bloomingdale
Sewer System, Respondents caused, threatened or allowed the
discharge of a contaminant into the environment.
25. By causing, threatening or allowing the discharge of a
contaminant into the environment in violation of conditions of
an NPDES
storm.water permit, Respondents thereby violated
Section 12
(f) of the Act, 415 ILCS
5/12
(f)
(2004)
.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against
Respondents, MEIJER STORES LIMITED PARTNERSHIP, a Michigan
domestic limited partnership, and
ROCKFORD CONSTRUCTION CO., a
Michigan domestic corporation, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondents will be required to answer the allegations herein;
2.
Find that Respondents have violated Section 12
(f)
of
the Act, 415 ILCS 5/12
(f)
(2004)
;
3.
Order Respondents to cease and desist from any further
violations of Section
12(f).of the Act, 415 ILCS
5/12(f)
(2004);
4.
Assess against Respondent a civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
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5.
Order Respondents to pay all costs, pursuant to
Section
42
(f) of the Act, 415 ILCS 5/42
(f)
(2004),
including
attorney, expert witness and consultant fees expended by the
State in its pursuit of this action; and
6.
Grant such other relief as the Board deems appropriate
and just.
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
Assistant Attorney Gene
Of Counsel:
JENNIFER A.
TOMAS
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
(312)
814-0609
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
)
V.
PCB NO.
07-
)
(Enforcement
-
Water)
MEIJER STORES LIMITED PARTNERSHIP,
)
a Michigan domestic limited
partnership, and
ROCKFORD
CONSTRUCTION CO., a Michigan
domestic corporation,
1
Respondents.
)
STIPULATION
AND
PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney Genera'l of the State of Illinois, the Illinois
Environmental Protection Agency ("Illinois
EPA"), MEIJER STORES
LIMITED PARTNERSHIP, a Michigan domestic limited partnership,
and
ROCKFORD CONSTRUCTION CO., a Michigan domestic corporation
("Respondents"), have agreed to the making of this Stipulation
and Proposal for Settlement ("Stipulation") and submit it to the
Illinois Pollution Control Board .('Board
u) 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 party has entered into this Stipulation, nor any
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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, Respondents agree to
be bound by the Stipulation and Board Order and not to contest
its validity in any subsequent proceeding to implement or
enforce its terms.
I.
JURISDICTION
The Board has
jurisdi.ction
of the subject matter herein and
of the parties consenting hereto pursuant to the Illinois
~nvironmental
Protection Act ("Act"),
415
ILCS
5/1
et
seq.
(2004).
11.
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.
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111.
STATEMENT OF FACTS
A.
Parties
1.
On July 5, 2006, 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
(2004), against the Respondents.
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 (2004).
3.
At all times relevant to the Complaint, Respondent
MEIJER STORES LIMITED PARTNERSHIP
("Meijer"), was and is a
Michigan domestic limited partnership.
Meijer is not registered
in Illinois.
4.
At all times relevant to this Complaint, Respondent
ROCKFORD CONSTRUCTION CO.
("RCCN),
was and is a Michigan
domestic corporation. RCC is not registered in Illinois.
B.
Site Description
1.
Prior to March 23, 2005, RCC was retained by
Meijer to
manage construction of a new
Meijer retail store on 32.29 acres
located at 130 South Gary Avenue, Bloomingdale,
DuPage County,
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Illinois ("Site"). The Site is now occupied by
Meijer Store
#198, a retailer of groceries and general merchandise.
2.
RCC was responsible for construction activities at the
Site including, but not limited to, erosion control at the Site.
C.
Allegations of Non-Compliance
Complainant contends that the Respondents have 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) (2004)
.
Count
11:
Water Pollution Hazard, in violation of Section
12 (d) of the Act, ,415 ILCS 5/12
(d)
(2004).
Count
111: NPDES Permit Violation, in violation of Section
12
(f) of the Act, 415 ILCS 5/12
(f)
(2004)
.
D.
Admission of Violations
The Respondents admit to the violations alleged in the
Complaint filed in this matter and referenced within Section
1II.C herein.
E.
Compliance Activities to Date
1.
On,March 23, 2005, two (2) Illinois EPA inspectors
visited the Site at
Meijer's request. The Illinois EPA
inspectors observed that the Site had adequate erosion control,
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with only minor maintenance issues remaining.
2.
On August 9, 2005, the Illinois EPA terminated
Meijerls National Pollutant Discharge Elimination System
("NPDES") permit for the Site, pursuant to a Notice of
Termination submitted on behalf of
Meijer. In the Notice of
Termination,
Meijer stated.
that the project was completed and
stabilized on June
16,
2006, an apparent'errant entry that
should have been "June
16,
2005."
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant,
Meije,r, and any partner, agent, or employee of
Meijer, and RCC, and any officer, director, agent or employee of
RCC, as well as any
successors.or
assigns of the Respondents.
The Respondents shall not raise as a defense to any enforcement
action taken pursuant to this Stipulation the failure of any of
their partners, 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
~ti~ulatibn
in no
way affects the responsibilities of
the Respondents to comply with any other federal, state or local
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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)
(2004), 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.
In response to these factors, the parties state the
following:
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1.
The environment was threatened and the Illinois
EPA1s
information gathering responsibilities hindered by the
Respondents' violations.
2.
There is social and economic benefit to the Site.
3.
Operation of the facility is suitable for the area in
which it is located.
4; Compliance with the terms of the NPDES permit for the
Site was both technically practicable and economically
reasonable.
.5.
Respondents have subsequently complied with the Act.
and the NPDES permit.
VII. CONSIDERATION OF SECTION
42(h) FACTORS
Section
42
(h) of the Act, 415 ILCS 5/42
(h)
(2004), 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;
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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;
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;
the number, proximity in time, and gravity of
previously adjudicated violations of this Act by
the respondent;
whether the respondent voluntarily
self-
disclosed, in accordance with subsection i of
this Section, the non-compliance to the Agency;
and
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 Respondents failed to implement adequate erosion
controls at the Site, failed to have complete inspection reports
and failed to have a complete Storm Water Pollution Prevention
Plan
("SWPPP") available at the Site. The failure to have
adequate erosion control measures at the Site endured
intermittently for approximately three (3) months, with periods
of both compliance and noncompliance. The failure to have
8
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complete inspection reports and a complete SWPPP at the Site
endured intermittently for approximately nine (9) months, with
periods of compliance and noncompliance.
.
2.
Respondents were relatively diligent in attempting to
come back into compliance'with the Act and NPDES permit once the
Illinois EPA notified them of their noncompliance.
3.
Respondents
1 failure to properly maintain erosion
control measures at the Site and failure to complete required
weekly inspection reports at the Site resulted in an economic
benefit to Respondents of Fifteen Thousand Six Hundred Forty-Two
Dollars ($15,642.00). It is Respondents' position that no
economic benefit was derived from their alleged noncompliance.
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of Eighty-Five Thousand
Dollars ($85,000.00) will serve to deter further violations and
aid in future voluntary compliance with'the Act.
5. To
Complainant's knowledge, Respondents have 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.
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VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
Respondent
Meijer shall pay a civil penalty in the sum
of Sixty Thousand Dollars
($60,000.00)
within thirty
(30)
days
from the date the Board adopts and accepts this Stipulation.
2.
Respondent RCC shall pay a civil penalty in the sum of
Twenty-Five Thousand Dollars
($25,000.00)
within thirty
(30)
days from the date the Board adopts and accepts this
Stipulation.
3.
The economic benefit of Fifteen Thousand Six Hundred
Forty-Two Dollars
($15,642.00)
is included in the total penalty
of Eighty-Five Thousand Dollars
($85,000.00)
and split equally
among the two
(2)
Respondents in their respective civil penalty
amounts. It is Respondents' position that no economic benefit
was derived from their alleged noncompliance.
4.
Respondents do not guarantee each other's payment
obligations under this Order.
5.
The penalties 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
rust Fund and submitted to:
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Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
6.
The name, case
number and each Respondent's individual
Federal Employer Identification Number (FEIN), shall appear on
each Respondent's 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.,
2oth Floor
Chicago, Illinois 60601
James Allen Day
Assistant counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
7.
Pursuant to Section
42
(9) of the Act, 415 ILCS 5/42
(g)
(2004), 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
(2004). 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
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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.
8.
For purposes of payment and collection, Respondents
may be reached at the following addresses:
Meijer Stores Limited Partnership
Robert J. Verheulen, Registered Agent
2929 Walker Avenue,
NW
Grand Rapids, Michigan
49544- 9428
Rockford
Construction Company
John J. Wheeler, Registered Agent
5540
Glenwood Hills Parkway
Grand Rapids, Michigan 49512
9.
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.
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
Respondents hereby agree that this Stipulation may be used
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against the Respondents in any subsequent enforcement action or
permit proceeding as proof of a past adjudication of violation
of the Act 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)
(2004)
.
Further,
Respondents agree 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 Respondents shall cease and desist from future
violations of the Act that were the subject matter of the
Complaint as outlined in Section
1II.C
("Allegations of Non-
compliance") of this Stipulation.
D.
Release from Liability
1.
In consideration of Respondent
Meijer's payment of a
$60,000.00 penalty and any specified costs and accrued interest,
its commitment to Cease and Desist as contained in Section
VII1.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
Respondent
Meijer from any further liability or penalties for
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violations of the Act that were the subject matter of the
Complaint herein.
2.
In consideration of Respondent
RCC1s payment of a
$25,000.00 penalty and any specified costs and accrued interest,
its commitment to Cease and Desist as contained in Section
VII1.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
Respondent RCC from any further liability or penalties for
violations of the Act that were the subject matter of the
Complaint herein.
3.
The releases set forth above do not extend to any
matters other than those expressly specified in Complainant's
Complaint filed on July 5, 2006. The Complainant reserves, and
this Stipulation is without prejudice to, all rights of the
State of Illinois against the Respondents 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
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d.
liability or claims based on the Respondents' failure
to satisfy the requirements of this Stipulation.
4.
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
(2004),
or entity
other than the Respondents.
E.
Correspondence, Reports and Other Documents
Any and all correspondence, except for payments pursuant to
Sections
VII1.A ("Penalty
Payment"), shall be submitted as
follows:
As to the Complainant
Jennifer A.
Tomas
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.,
2oth
Floor
Chicago, Illinois
60601
James Allen Day
Assistant Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794- 9276
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 5, 2006
As to the
Res~ondents
Cynthia Warren
Meijer Corporate Counsel
2929 Walker Avenue,
NW
Grand Rapids, Michigan 49544
Barry
LaFreniere
Rockford Construction Company, Inc.
5540
Glenwood Hills Parkway SE
Grand Rapids, Michigan 49512
I?.
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
VII1.E.
Any
such request shall be made by
separate document, and
shall.not be submitted within any other
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
16
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Order is a binding and enforceable order of the Illinois
Pollution Control Board and may be enforced as such through any
and all available means.
2.
Respondents agree 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 no
party is bound by the terms herein.
4.
It is the intent of the Complainant and Respondents
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.
H.
Execution of Document
This Order shall become effective only when executed by all
parties and the Court. This Order may be executed by the
parties in one or more counterparts, all of which taken
together, shall constitute one and the same instrument.
17
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WHEREFORE, Complainant and Respondents request that the
Board adopt and accept the foregoing
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
Stipulation and Proposal
BY:
r-4
ROSEMARIE CAZEAU,
~hxef
*
b
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
DATE
:
k
DATE:
bh
Chief Legal Counsel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 5, 2006
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MEIJER STORES LIMITED PARTNERSHIP
ROCKFORD CONSTRUCTION CO.
BY:
Name
:
Title:
DATE
:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 5, 2006
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MEIJER STORES LIMITED PARTNERSHIP
Name
:
Title:
ROCKFORD CONSTRUCTION CO.
DATE
:
DATE:
-b!---
b
2
€fa
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 5, 2006
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CERTIFICATE OF SERVICE
I, JENNIFER A.
TOMAS, an Assistant Attorney General,
certify that on the
5th
day of July 2006, I caused to be served
by Certified Mail, Return Receipt Requested, the foregoing
Complaint for Civil Penalties, 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
G~
IFER A.
TOMAS
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 5, 2006
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