Lisa Madigan
Al
- I0RNEY (3ENFR %I .
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R . Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
RECEIVEDCLERK'S
OFFICE
"IH
6
r "'
0
2006
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
STATE OF ILLINOIS
Pollution Control Board
November 1, 2006
Re:
People v. Tres Amigos Properties,
LLC
PCB No. 06-175
Dear Clerk Gunn :
Enclosed for filing please find the original and ten copies of a Notice of Filing, Motion for
Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard to the
above-captioned matter
. Please file the originals and return file-stamped copies to me in the
enclosed, self-addressed envelope
.
Thank you for your cooperation and consideration .
Very truly yours,
Jennifer Zonkowski
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
JB/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706
• (217) 782-1090 • TTY: (217) 785-2771 • Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 •
(312) 814-3000 • 'ITY: (312) 814-3374
•
Fax : (312) 814-3806
1001 Fast Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403
•
Fax
: (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEIVED
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
Pi W r
0 ?
2006
)
STATE OF ILLINOIS
vs.
)
PCB No. 06-175
Pollution Control Board
(Enforcement)
TRES AMIGOS PROPERTIES, LLC,
)
an Illinois limited liability company,
)
Respondent .
)
NOTICE OF FILING
To :
Charles J
. Northrup
Sorling, Northrup, Hanna, Cullen
and Cochran, Ltd .
800 Illinois Building, 607 E
. Adams St .
P .O. Box 5131
Springfield, IL 62705
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, a MOTION FOR RELIEF FROM HEARING REQUIREMENT
and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of which are attached hereto
and herewith served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J
. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: /J,ENNIFE9BONK
WSKI
<x
t4f
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated
: November 1, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE IVED
CLERK'S
OFFICE
N
:3 V 0 3 2006
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
Pollution
STATE OFControlILLINOISBoard
)
vs.
)
PCB No. 06-175
(Enforcement)
TRES AMIGOS PROPERTIES, LLC,
)
an Illinois limited liability company,
)
Respondent .
)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31(c)(2) of the
Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31(c)(2) (2004), moves that the Illinois
Pollution Control 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 parties have reached agreement on all outstanding issues in this matter .
2 .
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion
.
3.
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) .
1
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
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated
: November 1, 2006
2
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
r .
BY: it),'CIA"
ENNIFE¢t BONKOWSKI
nvironmbntal Bureau
Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that I did on November 1, 2006, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT:
To :
Charles J
. Northrup
Sorling, Northrup, Hanna, Cullen
and Cochran, Ltd .
800 Illinois Building, 607 E . Adams St .
P .O . Box 5131
Springfield, IL 62705
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s) :
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
JENNIFER BO KOWKSI
Assistant Attorney General
This filing is submitted on recycled paper .
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
PCB No.
06-175
(Water-Enforcement)
TRES AMIGOS PROPERTIES, LLC,
)
an Illinois limited liability company,
)
Respondent .
)
RECEIVED
CLERK'S
OFFICE
NOV
0
2006
STATE OF ILLINOIS
Pollution Control Board
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
TRES AMIGOS PROPERTIES, LLC, an Illinois limited liability company, ("Respondent" or "Tres"),
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 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 .
1
I . JURISDICTION
The Board has jurisdiction of the subject matter herein and of the parties consenting hereto
pursuant to the Illinois Environmental Protection Act
("Act"), 415 ILCS 5/1 et seq . (2004) .
II . AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by the
party whom they represent to enter into the terms and conditions of this Stipulation and to legally
bind them to it
.
III. STATEMENT OF FACTS
A.
Parties
1 .
Simultaneously with this Stipulation, a Complaint is being 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
.
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 an Illinois limited
liability company in good standing
.
B .
Site Description
At all times relevant to the Complaint, Respondent owned the Hilton Garden Inn
construction site, a 2.5
acre parcel located at 3100 South Dirksen Parkway, Springfield, Sangamon
County, Illinois .
2
2 .
Tres was issued coverage under the NPDES general stormwater permit by the
Illinois EPA on June 1, 2004
.
3 .
The NPDES general stormwater permit requires Tres to implement the provisions
of a storm water pollution prevention plan at the construction site, including erosion control
measures .
4.
On October 19, 2004, the Illinois EPA inspected the site to evaluate Tres'
compliance with the NPDES Permit
. Minimal erosion controls were in place, but were inadequate
to prevent silt-laden discharge from flowing through the site's chain-link fence towards 1-55, onto
Dirksen Parkway, and into several storm inlets on the site . These discharges would eventually be
carried by storm water to an unnamed tributary of Sugar Creek .
5.
As of October 18, 2004, Tres had not obtained a construction permit from the Illinois
EPA to construct a sanitary sewer to connect the Hilton Garden Inn to the Springfield Sewer
System .
6 .
As of October 18, 2004, Tres had connected the Hilton Garden Inn to the
Springfield sewer system via an unauthorized existing line
. Tres contends that at no time prior to
the initiation of this matterwas it aware that any Illinois EPA permit was required for the connection .
At the time of the construction, the connection at issue was observed and approved by
representatives of the City of Springfield
.
7 .
Tres' NPDES general stormwater permit does not contain an authorization to
construct a sanitary sewer as a condition of the permit .
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the Act
and Board regulations
:
3
Count I :
By causing or allowing or threatening the discharge
of contaminants into waters of the State in violation
of the terms or conditions of its NPDES Permit, Tres
has thereby violated Section 309 .102(a) of the
Board's Water Pollution Regulations, 35 III . Adm .
Code 309
.102(a) .
By failing to maintain adequate erosion controls at its
site to prevent silt-laden storm water discharges as
required by its NPDES Permit, Tres has caused,
threatened or allowed the discharge of any
contaminant into the waters of the State in violation
of its NPDES permit, and has thereby violated
Section 12(f) of the Act, 415 ILCS 5112(f) (2004) .
Count II :
By failing to obtain a construction permit for
connection of the site to the Springfield sewer
system, Tres has violated Section 309 .154 of the
Board's Water Pollution Regulations, 35 III
. Adm
.
Code 309 .154, and Section 12(b) of the Act, 415
ILCS 5/12(b) (2004) .
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 within Section
III .C herein, and this Stipulation shall not be interpreted as including such admission .
E.
Compliance Activities to Date
Tres obtained the required permit for construction of a sanitary sewer line attachment in
April 2005, and has implemented appropriate erosion control measures
.
Construction at the site
has been completed .
4
IV . APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent,
and any officer, director, agent, or employee of the
Respondent, as well as any successors or
assigns of the Respondent .
The Respondent shall not raise as a defense to any enforcement
action taken pursuant to this Stipulation the failure
of any of its officers, directors, agents,
employees or successors or assigns to take such action
as shall be required to comply with the
provisions of this Stipulation
.
1 .
No change in ownership, corporate status or operator of the
facility 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 facility, the Respondent shall
continue to be bound by and remain liable for performance of all
obligations under this Stipulation
.
2 .
In the event that the Respondent proposes to sell or transfer any
real property or operations
subject to any Order accepting and adopting
the terms of this Stipulation and Proposal
for
Settlement, the Respondent shall notify the Complainant
30 days prior to the conveyance of title,
ownership or other interest, including a leasehold
interest in the facility or a portion thereof
. The
Respondent shall make the prospective purchaser or successor's compliance with any Order
accepting and adopting the terms of this Stipulation
a condition of any such sale or transfer and
shall provide a copy of this Stipulation and any Order accepting
and adopting the terms of this
Stipulation to any such successor in interest .
This provision does not relieve the Respondent from
5
compliance with any regulatory requirement regarding notice and transfer of applicable facility
permits .
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 III . 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 :
1 .
Complainant contends that the injury to, or interference with, the protection of the
health, general welfare, and physical property of the People would be characterized as causing,
threatening or allowing the discharge of any contaminant into waters of the State . As to the degree
6
of injury, although harm may not have resulted, the potential for harm to aquatic life due to
increased sedimentation was present ;
2 .
The parties agree that Respondent's site is of social and economic benefit
;
3 .
Respondent's site is suitably located
;
4 .
The parties agree that complying with the Act and regulations is technically
practicable and economically reasonable
; and
5 .
Respondent implemented measures subsequent to the alleged violations that
are the subject of the Complaint in this matter in order to operate in compliance with the Act and
the associated 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
:
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
7 .
whether the respondent has agreed to undertake a "supplemental environmental
project," which means an environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement action brought under this Act,
but which the respondent is not otherwise legally required to perform
.
In response to these factors, the parties state as follows
:
The violations occurred on some date prior to October 18, 2004, through April,
2005 .
2 .
Following the Illinois EPA inspection, Respondent quickly implemented stormwater
pollution prevention measures and submitted an application for the required sewer construction
permit on December 2, 2004
.
3 .
The Respondent realized a minimal economic benefit from noncompliance by
delaying the costs of implementing erosion control measures
.
4 .
Complainant has determined, in this instance, that a monetary penalty of five
thousand dollars ($5,000
.00) will serve to deter further violations and aid in future voluntary
enforcement of the Act and applicable regulations
.
5 .
The Respondent has no prior adjudicated violations
.
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 five thousand dollars
($5,000
.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation
. The
Respondent stipulates that payment has been tendered to Respondent's attorney of record in this
matter in a form acceptable to that attorney
. Further, Respondent stipulates that said attorney has
8
been directed to make the penalty payment on behalf of Respondent, within thirty (30) days from
the date the Board adopts and accepts this Stipulation, in a manner prescribed below . The penalty
described in this Stipulation shall be paid by certified check, money order or electronic funds
transfer payable to the Illinois EPA, designated to the Illinois Environmental Protection Trust Fund
and submitted to :
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer Identification Number
(FEIN) 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 :
Peggy Poitevint
Environmental Bureau
Office of the Attorney General
500 South Second Street
Springfield, Illinois 62702
Joey Logan-Wilkey
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) (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 unpaid payment then due and owing
. All interest on payment owed
9
shall be paid by certified check, money order or electronic funds transfer, payable to the Illinois
EPA, designated to the Illinois Environmental Protection Trust Fund and delivered to the address
and in the manner described above.
3 .
For purposes of payment and collection, Respondent may be reached at the
following address :
Arthur Seppi
Tres Amigos, LLC
2144 South MacArthur Boulevard
Springfield, IL 62704
4 .
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 Respondent hereby agrees that this Stipulation may
be used against the Respondent in any subsequent enforcement action or permit proceeding as
proof of a past adjudication of violation of the Act and the Board Regulations promulgated
thereunder for all violations alleged in the Complaint in this matter, for purposes of Section 39(a)
and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(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
.
C .
Cease and Desist
The Respondent shall cease and desist from future violations of the Act and Board
10
Regulations that were the subject matter of the Complaint as outlined in Section III
.C ("Allegations
of Non-Compliance") of this Stipulation .
D .
Release from Liability
In consideration of the Respondent's payment of the five thousand dollar ($5,000
.00)
penalty and any specified costs and accrued interest to Cease and Desist as contained in Section
VIII,C and upon the Pollution Control Board's acceptance and approval of the terms of 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 otherthan those expressly specified in Complainant's Complaint filed simultaneously
with this Stipulation
. The Complainant reserves, and this Stipulation is without prejudice to, all
rights of the State of Illinois against the Respondent with respect to all other matters, including but
not limited to, the following :
a .
criminal liability
;
b .
liability for future violation of state, federal, local, and common laws and/or
regulations ;
c .
liability for natural resources damage arising out of the alleged violations
; and
d .
liability or claims based on the Respondent's failure to satisfy the requirements of
this Stipulation .
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
.
11
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 onto the
Respondent's site which is the subject of this 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.
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
.
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 .
12
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:
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
ROBERT A
. ME NA
Chief Legal Counsel
TRES AMIGOS PROPERTIES, LLC
an Illinois limited liability company
BY :
13
DATE:
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