BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
V.
1
PCB NO. 07-
1
(Enforcement
VILLAGE OF
TINLEY PARK, a
)
municipal corporation,
1
)
Respondent.
1
Water)
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
State of Illinois
Yssistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth Floor
Chicago, Illinois 60601
(312) 814-0609
DATE:
July 19, 2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
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SERVICE LIST
Dennis Walsh
Klein, Thorpe
&
Jenkins
15010
S. Ravinia Avenue, Suite
17
Orland
Park, Illinois
60477
Charles Gunnarson
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North ,Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794
- 9276
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE' OF ILLINOIS,
)
1
Complainant,
1
)
v.
)
PCB No.
07-
1
(Enf
orcement
VILLAGE OF
TINLEY PARK, a
1
municipal corporation,
1
)
1
Respondent.
-
Water)
COMPLAINT FOR CIVIL PENALTIES
Complainant,.
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, complains of
Respondent, VILLAGE OF
TINLEY PARK, a municipal 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.
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
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alia, with the duty of enforcing the Act. This Count is brought
pursuant to Section 31 of the Act, 415 ILCS 5/31 (2004).
3.
At all times relevant to this Complaint, the Village
of
Tinley Park
("Tinley Park") was and is a municipal
corporation duly organized and existing under the laws of the
State of Illinois.
Tinley Park is a village with a population
of 48,401 individuals.
4.
On August 11, 2004 at approximately
10:OO a.m.,
Tinley
Park notified the Illinois EPA that a 20-inch sewer force main
had developed a crack and raw sewage had been released to a
drainage ditch.
5.
An investigation by the Illinois EPA
following the
notification revealed that on August 10, 2004 at approximately
4:00 p.m., a two-inch split had occurred in the force main
located at
171St Street and
8oth
Avenue,
Tinley Park, Cook County,
Illinois ("Site") causing a leak.
6.
Tinley Park personnel pumped approximately 5,000
gallons of untreated sewage from the main to the Midlothian
Drainage Ditch to allow the needed repairs of the main. The
Midlothian Drainage Ditch is a channelized section of Midlothian
Creek. Hay bales were used to minimize the amount of solids
reaching the creek.
7. During an August 11, 2004 inspection, the Illinois EPA
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inspector observed gray matter in the bed of the Midlothian
Drainage Ditch channel where the pumping had taken place.
Tinley Park advised the inspector that the bed of the channel
would be cleaned up after the necessary repairs to the force
main were completed.
8.
On August 11, 2004, excavation of the sanitary sewer
main was conducted and a small crack of approximately three
inches long was repaired using a 20 inch by 24 inch stainless
steel repair clamp. The excavation was then backfilled.
9.
The Midlothian Drainage Ditch and
surrounding bank
were cleaned by removing the contaminated soils, replacing the
soil along the bank, and flushing approximately 50,000 gallons
of clean water to dilute the ditch water and reduce the odor.
10. Subsequent to the release that occurred on August 10,
2005, the Respondent developed a standard operating procedure
("SOP") to address broken sewer force mains in the future.
11. 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,
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birds, fish, or other aquatic life.
12. Section 3.315 of the Act, 415 ILCS
5/3.315
(2004),
provides the following definition:
"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.
13. Respondent
Tinley Park is a "person" as that
term,is
defined in 415 ILCS
5/3.315 (2004).
14. 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.
15. Untreated sewage is a "contaminant" as that term is
defined in 415 ILCS
5/3.165 (2004).
16. 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
partially within, flow through, or border upon this
State.
The Midlothian Drainage Ditch is "waters" as that term
is defined in 415 ILCS
5/.3.550
(2004)
.
18.
Section 12 (a) of the Act, 415 ILCS 5/12
(a)
(2004)
,
provides as follows:
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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.
Respondent
Tinley Park, by placing untreated sewage in
the Midlothian Drainage Ditch, a channelized section of
Midlothian Creek, thereby causing, threatening and allowing gray
sediment to accumulate in the drainage ditch, caused, threatened
or allowed water pollution in violation of 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
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing
.in this matter at which time
Respondent will be required to answer the allegations herein;
2.
Find that Respondent has violated Section
12(a) of the
Act, 415 ILCS
5/12
(a)
(2004)
;
3.
Order Respondent to cease and desist from any further
violations of Section,
12
(a) of the Act;
4.
Assess against the Respondent a civil
penalty.of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
Board regulations, and an additional civil penalty of Ten
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Thousand Dollars ($10,000.00) for each day of violation;
5.
Order Respondent 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.
COUNT
I1
WATER POLLUTION HAZARD
1-17.
Complainant realleges and incorporates by
reference herein Paragraphs 1 through 17 of Count I as
Paragraphs 1 through 17 of this Count
11.
18. Section 12
(d) of the Act, 415 ILCS 5/12
(d)
(2004)
,
provides as follows:
No person shall:
*
*
*
(d)
~e~osit
any contaminants upon
.the land in such
place and manner so as to create a water
pollution hazard.
19. By depositing raw sewage on the land in such
piace and
manner as to create a water pollution hazard to waters of the
State,
Tinley Park violated Section
22(d) of the Act, 415 ILCS
5/12
(d)
(2004)
.
.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
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respectfully requests that the Board enter an order against
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2.
Find that Respondent has violated Section
12(d) of the
Act, 415 ILCS
5/12
(d)
(2004)
;
3.
Order Respondent to cease and desist from any further
violations of Section
12(d) of the Act;
4.
Assess against the Respondent
Thousand .Dollars ($50,000.00) for each
a civil penalty of Fifty
violation of the Act and
Board regulations, and an additional civil penalty of Ten
Thousand Dollars
($10,000.00) for each day of violation;
5.
Order Respondent 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.
COUNT
I11
VIOLATIONS OF NATIONAL POLLUTANT DISCHARGE
ELIMINATION SYSTEM PERMIT
1-17.
Complainant realleges and incorporates by
reference herein Paragraphs 1 through 17 of Count I as
Paragraphs 1 through 17 of this Count
111.
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18.
Section 12
(f) of the Act, 415 ILCS 5/12
(f)
(2004)
,
provides 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.
19. Section
309.102(a) of the Illinois Pollution Control
Board
("~oard")
Water Pollution regulations, 35
Ill. Adm. Code
309.102(a), provides as follows:
a) Except as in compliance with the provisions of
the Act, Board regulations, and the CWA, and the
provisions and conditions of the NPDES permit.
issued to the discharger, the discharge of any
contaminant or pollutant by any person into the
waters of the State from a point source or into a
well shall be unlawful.
20. Section 720.110 of the Board Waste Disposal
Regulations, 35
Ill. Adm. Code 720.110, provides the following
definition:
,
"POINT SOURCE" means any discernible, confined, and
discrete conveyance, including, but not limited to,
any pipe, ditch, channel, tunnel, conduit, well,
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discrete fissure, container, rolling stock,
concentrated animal feeding operation, or vessel or
other floating craft from which pollutants are or may
be discharged. This term does not include return flows
from irrigated agriculture.
21. The sanitary sewer main was a "point source" as that
term is defined in 35
Ill. Adm. Code 720.110.
22. Pursuant to Section
12(f) of the Act, 415 ILCS
5/12
(f)
(2004), and Section
309.102
(a) of the Board Water
Pollution regulations, 35
Ill. Adm. Code
309.102(a), Respondent
was' required to obtain a National Pollutant Discharge
Elimination System ("NPDES") permit for the discharge of raw
'
sewage to waters of the State.
23.
Tinley Park did not have a NPDES permit for the
'discharge described in this Complaint.
24. By failing to obtain an NPDES
.permit,
and causing,
threatening or allowing the deposit of
-contaminants into waters
of the State,
Tinley Park violated Section
12(f) of the Act, 415
ILCS
5/12
(f)
(2004), and Section
309.102
(a) of the Board Water
Pollution regulations.
WHEREFORE, Complainant, PEOPLE OF THE STATE .OF ILLINOIS,
. .
respectf
ully requests that the Board enter an order ,against
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondent
will'be required to answer the allegations herein;
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2.
Find that Respondent has violated section 12
(f) of the
Act, 415 ILCS
5/12
(f)
(2OO4), and Section
309.102
(a) of the Board
Water Pollution regulations, 35
Ill.
'~dm.
Code 309.102
(a);
3.
Order Respondent to cease
and.desist from any further
violations of Section 12
(f) of the Act and Section
3'09.102
(a) of
the Board Water Pollution'regulations;
4.
Assess
against.the Respondent a civil penalty of Ten
Thousand Dollars ($10,000.00) per day for each violation
pursuant to Section 42
(b)
(1) of the Act, 415 ILCS
5/42
(b)
(1)
(2004)
;
5.
Order Respondent to pay all costs, pursuant to Section
42
(f) of the Act, 415 ILCS 5/42
(f)
(2OO4), .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.
COUNT
IV
OFFENSIVE CONDITIONS
1-18.
Complainant realleges and incorporates by
reference herein Paragraphs 1 through 18 of Count I as
Paragraphs 1 through 18 of this Count
IV;
19. Section 302.203 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 302.203, provides 'as follows:
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Waters of the State shall be free from sludge or
bottom deposits., floating debris, visible oil, odor,
plant or algal growth, color or turbidity of other
than natural origin.
. .
20. Section 304.105 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 304.105, provides as follows:
In addition to the other requirements of this Part, no
effluent shall, alone or in combination with other
sources, cause a violation' of any applicable water
quality standard
...
d
21. On August 10, 2004,
Tinley Park caused or allowed
approximately'5,OOO
gallons of untreated sewage to be discharged
into,waters
of the State. This discharge caused deposits of
gray sediment and odors in waters of the State.
22. By causing or allowing the discharge of untreated
sewage that resulted in a violation of the water quality
standard found in Section
302:203, 35
Ill. Adm. Code 302.203,
the Respondent violated Section 304.105, 35
Ill. Adm. Code
304.105.
23. By violating Sections 302.203 and 304.105 of the Board
Water Pollution regulations, Respondent, thereby, also 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
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing in this matter at which time
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Respondent will be required to answer the allegations herein;
2.
Find that Respondent has violated Section
12(a) of the
Act, 415 ILCS 5/12 (a)
(2004)
,
and Sections 302.203 and
304.105 of
the Board Water Pollution regulations, 35
Ill. Adm. Code 302.203
and 304.105;
3.
Order Respondent to cease and desist from any further
violations of Section
12(a) of the Act and Sections 302.203.
and
304.105 of the Board Water Pollution regulations;
4.
Assess against Respondent a civil penalty of Fifty
Thousand
~bllars
($50,000.00) for each violation of the Act and
Board regulations, and an additional civil penalty of Ten
Thousand Dollars
($10,000.00) for each day each violations
occurred;
5.
Order Respondent 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
ju'st
.
COUNT v
1-18.
Complainant realleges and incorporates by
reference herein Paragraphs
through
Count
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Paragraphs 1 through 18 of this Count V.
19. Section 304.106 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 304.106, provides as follows:
In addition to the other requirements of this Part,
no effluent shall contain settleable solids, floating
debris, visible oil, grease, scum or sludge solids.
Color, odor and turbidity must be reduced to below
obvious levels.
20. On August 10, 2004,
Tinley Park caused or allowed
approximately 5,000 gallons of untreated sewage to be discharged
into the Midlothian Drainage Ditch, a water of the State. This
discharge contained settleable solids and noticeable odor in
violation of Section 304.106 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 304.106.
21. By violating Section 304.106 of the Board Water
Pollution regulations, Respondent, thereby, also 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
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2.
Find that Respondent has violated Section
12(a) of the
Act, 415 ILCS
5/12(a)
(2004), and Section 304.106 of the Board
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Water Pollution regulations, 35
Ill. Adm. Code 304.106;
3.
Order Respondent to cease and desist from any further
violations of Section
12(a) of the Act and Section 304.106 of
the Board Water Pollution regulations;
4.
Assess against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
Board regulations, and an additional civil penalty of Ten
Thousand Dollars
($~10,000.00)
for each day each violations
occurred;
5.
Order Respondent 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.
COUNT
VI
FAILURE TO MAINTAIN RELIABLE POLLUTION CONTROL SYSTEMS
1-18.
Complainant realleges and incorporates by
reference herein Paragraphs 1 through '18 of Count I as
Paragraphs 1 through 18 of this Count VI.
19.
Section 306.102 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 306.102, provides as follows:
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Systems Reliability
a) Malfunctions: All treatment works and associated
facilities shall be so constructed and operated
as to minimize violations of applicable' standards
during such contingencies as flooding, adverse
weather, power failure, equipment failure, or
maintenance, through such measures as multiple
units., holding tanks, duplicate power sources, or
such other measures as may be appropriate.
b)
Spills: All reasonable measures, including where
appropriate the provision of catchment areas,
relief vessels, or entrapment dikes, shall be
taken to prevent any spillage of contaminants
from causing water pollution.
20.
Section
306.304
of the Board Water Pollution
regulations,
35
Ill.
Adm. Code
306.304,
provides as follows:
Overflows
Overflows from sanitary sewers are expressly
prohibited.
21.
Tinley
Park failed to employ the appropriate
procedures to prevent the spillage of contaminants during sewer
main breaks from causing water pollution in violation of Section
306.102
of the Board Water Pollution regulations.
22.
Tinley
Park's
failure to employ appropriate
preventative procedures caused the discharge of untreated sewage
into the Midlothian Drainage Ditch, thereby violating Section
306.304
of the Board Water Pollution regulations.
23.
By violating Sections
306.102
and
306.304
of the Board
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Water Pollution regulations, Respondent, thereby, also 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
Respondent, VILLAGE OF
TINLEY PARK, for the following relief:
1.
Authorize a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2.
Find that Respondent has violated Section 12 (a) of the
Act, 415 ILCS
5/12(a)
(2004), and Sections 306.102 and 306.304 of
the Board Water Pollution regulations, 35
Ill. Adm. Code 306.102
and 306.304;
3.
Order Respondent to cease and desist from any further
violations of Section
12(a) of the Act and Sections 306.102 and
306.304 of the Board Water Pollution regulations;
4.
Assess against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
Board regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day each violations
occurred;
5.
Order Respondent 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
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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 General
Of Counsel:
JENNIFER A.
TOMAS
Assistant Attorney General
Environmental Bureau
188
West
kandolph Street, Suite
2001
Chicago, Illinois
60601
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
1
1
V.
)
PCB NO.
07-
)
(Enforcement
-
Water)
VILLAGE OF
TINLEY PARK, a
)
municipal 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
Village of
Tinley Park
(
"Tinley
Park" or "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 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
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approves and enters this Stipulation, Respondent agrees 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 jurisdiction of the subject matter herein and
pf the parties consenting hereto pursuant to the Illinois
Environmental 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.
111.
STATEMENT OF FACTS
A.
Parties
1.
On July 19, 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 Respondent.
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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 was
and is a municipal corporation duly organized and existing under
the laws of the State of Illinois.
B.
Site Description
1. On August 10, 2004 at approximately
4:00 p.m., a two
inch split occurred in the force main located at
17lSt
Street and
8oth
Avenue,
Tinley Park, Cook County, Illinois
("Site") causing
a leak.
2.
Tinley Park personnel pumped approximately 5,000
gallons of untreated sewage from the main to the Midlothian
Drainage Ditch to allow the needed repairs of the main. The
Midlothian Drainage Ditch is a channelized section of Midlothian
Creek. Hay bales were used to minimize the amount of solids
reaching the creek.
C.
Allegations of Non-Compliance
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)
(2004).
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Count I I
:
Water Pollution Hazard, in violation of
Section
12(d) of the Act, 415 ILCS
5/12
(d)
(2004)
.
Count I I I
:
Violations of National Pollutant Discharge
Elimination System Permit, in violation of
Section
12(f) of the Act, 415 ILCS
5/12
(f)
(2004)
,
and Section 309.102 (a) of the
I
Board Water Pollution regulations, 35
Ill.
Adm. Code 309.102
(a).
Count IV
:
Offensive Conditions, in violation of
Section
12(a) of the Act, 415 ILCS
5/12
(a)
(2004)
,
and Sections
302.203 and
304.105 of the Board Water Pollution
regulations, 35
Ill. Adm. Code 302.203 and
304.105.
Count V
:
Offensive Discharges, in violation of
Section
12(a) of the Act, 415 ILCS
5/12
(a)
(2004)
,
and Section
304.106 of the
Board Water Pollution regulations, 35
Ill.
Adm. Code 304.106.
Count VI
:
Failure to Maintain Reliable Pollution
Control Systems, in violation of Section
12
(a) of the Act, 415 ILCS
5/12
(a)
(2004)
,
and Sections 306.102 and 306.304 of the
Board Water Pollution regulations, 35
Ill.
Adm. Code 306.102 and 306.304.
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 its terms, the Respondent does not affirmatively admit the
allegations of violation within the Complaint and referenced
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within Section
1II.C herein, and this Stipulation shall not be
interpreted as including such admission.
E.
Compliance Activities to Date
1.
On August 11, 2004, excavation of the sanitary sewer
main was conducted and a small crack of approximately three
inches long was repaired using a 20 inch by 24 inch stainless
steel repair clamp. The excavation was then backfilled.
2.
The Midlothian Drainage Ditch and surrounding bank
were cleaned by removing the contaminated soils, replacing the
soil along the bank, and flushing approximately 50,000 gallons
of clean water to dilute the ditch water and reduce the odor.
3.
Respondent developed a standard operating procedure
("SOP") to address broken sewer force mains in the future.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent, and any officer, trustee, 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, trustees,
agents, employees or successors or assigns to take such action
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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)
(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;
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
4.
the technical practicability and economic
reasonableness of reducing or eliminating the emissions,
discharges or deposits resulting from such pollution source; and
5.
any subsequent compliance.
In response to these factors, the parties state the
following:
1.
Human health and the environment were threatened by
the Respondent's violations. Respondent denies this statement.
2. The Site has social and economic benefit.
3.
The Site is suitable for the area in which it is
located.
4.
It is both technically practicable and economically
reasonable to have a standard operating procedure for force main
breaks to prevent untreated sewage from discharging into the
environment.
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)
(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:
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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 an enforcement action brought under
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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 leak in the sewer force main was discovered on
August 10, 2004, the Illinois EPA was notified on August 11,
2004, the bypass was conducting on August 11, 2004, and
corrective measures were initiated on August 11, 2004.
Complainant states, but Respondent denies, that the bypass
amounted to the discharge of untreated sewage to a tributary of
Midlothian Creek. While the discharge could have been
prevented, Respondent's corrective measures appear to have been
adequate to prevent significant damage to waters of the State.
2.
Respondent was diligent in implementing remedial
actions. A SOP was developed to prevent reoccurrences of the
discharge.
3.
Little if any economic benefit was gained by the
Respondent through its noncompliance. The penalty obtained
negates any economic benefit that may have accrued as a result
of Respondent's noncompliance.
4.
.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of Fourteen Thousand
Dollars ($14,000.00) will serve to deter further violations and
aid in future voluntary compliance with the Act and Board
regulations.
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5.
To Complainant's knowledge, Respondent has no
previously adjudicated violations of the Act.
6.
Respondent notified the Illinois EPA of the sewage
discharge.
7.
The settlement of this matter
inc1udes.a
supplemental
environmental project.
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
a.
Complainant initially determined that a civil
penalty of Fourteen Thousand Dollars ($14,000.00) for
Respondent's violations of the Act and the Board regulations was
appropriate based on the gravity of the alleged violations.
b.
Respondent has agreed to implement, and
Complainant has agreed to accept in partial settlement of this
matter, the proposed terms of a Supplement Environmental Project
("SEP"), which has the value of approximately Thirty Thousand
Dollars ($30,000.00) and is described under Section
VIII.C,
below.
c.
In order to promote the goals of the Act to
restore, protect and enhance the quality of the environment,
Complainant has agreed to mitigate the civil penalty to Five
Thousand Dollars
($5,000.00),
based upon Respondent's commitment
to implement the SEP.
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d.
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.
Payment shall be made as follows:
e.
Payment shall be made by certified check or money
order, payable to the Illinois EPA for deposit into the
Environmental Protection Trust Fund
("EPTF") and shall be sent
by first class mail and delivered to:
Illinois Environmental Protection Agency
Fiscal
.services
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
f
.
The name, case number, and the Respondent s
Federal Employer Identification Number
("FEIN") shall appear on
the face of the certified check or money order. A copy of the
certified check or money order and the transmittal letter shall
be sent to:
Jennifer A.
Tomas
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
g.
For purposes of payment and collection, the
Respondent's attorney may be reached at the following address:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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Dennis G. Walsh
Klein, Thorpe and Jenkins, Ltd.
20 N. Wacker Drive, Suite 1660
Chicago, Illinois 60606
h.
For purposes of payment and collection,
Respondent may be reached at the following address:
Scott Niehaus
Village of
Tinley Park
16250 Oak Park Avenue
Tinley Park, Illinois 60477
i.
Upon Respondent's failure to pay the civil
penalty when due, the entire balance of the penalty remaining
unpaid shall without notice be and become immediately due and
payable.
j.
In the event of default, the Complainant shall be
entitled to reasonable costs of collection, including reasonable
attorney's fees.
k. In the event that Respondent fails to implement
the SEP described in Section
VIII.C, Respondent shall remit the
amount of Nine Thousand Dollars ($9,000.00) to the
~llinois
EPA
within thirty (30) calendar days after the event
(s) or
circumstance(s) resulting in the nonperformance. Payment of the
remittance shall be made according to Section
VIII.1.e and
VIII.l.f, above.
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B.
Interest on Penalties
1.
Pursuant to Section
42(g) of the Act, 415 ILCS
5/42(g)(2004), interest shall accrue on any penalty amount owed
by the Respondent not paid within the time prescribed herein, at
the maximum rate allowable under Section 1003
(a) of the
11linois
Income Tax Act, 35 ILCS
5/l0O3
(a)
(2004).
2. Interest on unpaid penalties shall begin to accrue
from the date the penalty is due and continue to accrue to the
date payment is received by the Illinois EPA.
3.
Where partial payment is made on any penalty amount
that is due, such partial payment shall be first applied to any
interest on unpaid penalties then owing.
4.
All interest on penalties owed the Complainant shall
be paid by certified check or money order payable to the
Illinois EPA for deposit in the EPTF at the above-indicated
address. The name, case number, and the Respondent's FEIN shall
appear on the face of the certified check or money order. A
copy of the certified check or money order and the transmittal
letter shall be sent to:
Jennifer A.
Tomas
Assistant Attorney General
Environmental Bureau
188 West Randolph St., Suite 2001
Chicago, Illinois 60601
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C.
Supplemental Environmental Project
1.
In connection with this Stipulation, Respondent shall
perform a SEP consisting of
streambank restoration and
stabilization
alang Midlothian Creek. The goal of this project
is to improve water quality in the stream located within the
Little Calumet Watershed. Respondent plans to stabilize two
areas of Midlothian Creek at Gentry Lane and
Lakewood Drive in
the Edgewater Walk subdivision. Currently the slopes are
slumping due to erosion and scouring. After removing the litter
and debris in these two areas, Respondent plans to regrade the
banks, place
riprap on the slopes, and place native wetland
plants at the toe of the banks. At the Gentry Lane location, a
storm sewer end section that has pulled away due to the erosion
will also be repaired and
riprap will be placed on the slope.
When completed, a total of approximately 400 feet of stream bank
will be stabilized and 2,000 feet of stream will have litter and
debris removed.
2. This project will not only stabilize the banks, reduce
erosion, and accommodate stormwater runoff, but will also help
facilitate the restoration of the wildlife habitat because of
the native wetland plantings. These native plants will also aid
in the filtering of various lawn-care chemicals (fertilizers and
herbicides) that turf grass does not fully absorb. .When these
chemicals enter the streams, they greatly reduce water quality.
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Native plantings on shorelines have been shown to provide a
stable, long-lasting alternative to solely using
riprap for soil
stabilization. The litter and debris removal portion of this
project will help reduce flooding caused by the accumulation of
debris which inhibits the natural stream flow while improving
the quality of the environment by reducing litter.
3.
Respondent shall complete the SEP by July 31, 2006.
Respondent shall submit all applicable documentation necessary
to complete the SEP.
4.
By signature on this Stipulation, Respondent certifies
that, as of the date of entry of this Stipulation, it is not
required to perform or develop the foregoing SEP by any federal,
state or local law or regulation, nor is it required to perform
or develop the SEP by agreement or injunctive relief in any
other case.
5.
In the event that the Respondent publicizes the SEP,
or the results of the SEP performed hereunder, in connection
with any advertisement of its business activities or any
statement concerning the SEP in a news medium, Respondent shall
include or reference the following statement:
'This project was
undertaken in connection with the settlement of an enforcement
action taken by the State of Illinois for alleged violations of
the State's environmental laws and the Illinois Pollution
Control
Boardl.s
regulations." The term "news media" as used
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herein shall have the meaning given to that term in Section
8-
902(b)
of the Illinois Code of Civil Procedure, 735 ILCS
5/8-
902
(b)
(2004)
.
6.
Respondent shall certify completion of the
above-
referenced SEP by submitting a report to the Illinois EPA and
the Attorney General within thirty (30) calendar days after
completion.
D.
Compliance Plan
The Respondent shall continue to comply with the Act and
all applicable regulations with regard to force main breaks, and
shall at all times implement its SOP in accordance with the
terms contained therein.
E.
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.G, 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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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, Respondent
agrees to waive any rights to contest, in any subsequent
enforcement action or permit proceeding, any allegations that
these alleged violations were adjudicated.
F.
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
1II.C
("Allegations of Non-Compliance") of this Stipulation.
G.
Release from Liability
In consideration of the Respondent's payment of the
$5,000.00 penalty and any specified costs and accrued interest,
its commitment to Cease and Desist as contained in Section
VII1.F 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 July 19, 2006. The
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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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.
Nothing in this Stipulation is intended as a waiver,
discharge, release, or covenant not to sue for
dny 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.
H.
Right of Entry
In addition to any other authority, the Illinois EPA, its
employees and representatives, and the Attorney General, her
agents and representatives, shall have the right of entry into
and upon the Respondent's Site which is the subject of this
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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Stipulation, at all reasonable times for the purposes of
carrying out inspections.
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.
I.
Correspondence, Reports and Other Documents
Any and all correspondence, except for payments pursuant to
Sections
VII1.A ("Penalty
Paymentr1)
of this Stipulation, 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
Charles Gunnarson
Assistant Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794- 9276
As to the Respondent
Scott Niehaus
Village of
Tinley Park
16250
Oak Park Avenue
Tinley Park, Illinois
60477
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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Dennis G. Walsh
Klein, Thorpe and Jenkins, Ltd.
20
N. Wacker Drive, Suite
1660
Chicago, Illinois
60606
J.
Modification of Stipulation
The parties 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.1.
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.
K.
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
Pollution Control Board and may be enforced as such through any
and all available means.
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2.
Respondent agrees that notice of any subsequent
proceeding to enforce the Board Order approving and accept'ing
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.
L.
Execution of Document
This Stipulation shall become effective only when executed
by all parties and the Board. This Stipulation may be executed
by the parties
in.one or more counterparts, all of which taken
together, shall constitute one and the same instrument.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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:
DATE
\-La,
amhI.~-4
R~SE~IE
'CAZEAU,
yhief'
b
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY
:
.
RO&RT
A.
MESSINA~
Chief Legal Counsel
DATE
:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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VILLAGE OF
TINLEY
PARK
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
1
)
V.
)
PCB NO. 07-
1
(Enforcement
-
Water)
VILLAGE OF
TINLEY PARK, a
1
municipal corporation,
1
)
Respondent.
)
MOTION FOR RELIEF FROM HEARING REOUIREMENT
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
~ct
("~ct"),
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)
(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)
(2OO4), and Sections 309.102
(a),
302.203,
304.105,
304.106, 306.102 and 306.304 of the Board Water Pollution
Regulations.
2.
Complainant is filing the Complaint with the Board
simultaneous with this Motion and a Stipulation and Proposal for
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
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Settlement.
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 ILCS 5/31
(c)
(1)
(2004)
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
P
IFERJA.
TOMAS
ssistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-0609
DATE: July 19, 2006.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
* * * * * PCB 2007-004 * * * * *
CERTIFICATE OF SERVICE
I, JENNIFER A.
TOMAS, an Assistant Attorney General,
certify that on the
lgth day of July 2006, I caused to be served
by U.S. 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
60601.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
* * * * * PCB 2007-004 * * * * *
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