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ORIGINAL

OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

Lisa Madigan

ATTORNEY GENERAL

RECEIVED

CLERK'S OFFICE

JUNI 5 2008

STATE

OF ILLINOIS

Pollution Control Board

June 20, 2008

The Honorable Dorothy Gunn

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 West Randolph

Chicago, Illinois 60601

Re:?

People v. Lake Arlann Drainage District, et al.

PCB No. 07-32

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.

500 South Second Street

Springfield, Illinois 62706

(217) 782-9031

MDM/pp

Enclosures

500 South Second Street, Springfield, Illinois 62706

100 West Randolph Street, Chicago, Illinois 60601

1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

BY:

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDREceivED

PEOPLE OF THE STATE OF ILLINOIS, )

ERK'S

OFFICE

Complainant,

JUN 2

5 2008

STATE OF ILLINOIS

v.?

PCB No. 07-32

Pollution Control Board

(Enforcement -

Water)

SOUTHWIND CONSTRUCTION CORP., )

an Indiana corporation,

Respondent.

NOTICE OF FILING

To:?

Southwind Construction Corp.

do Dirck H. Stahl

Ziemer, Stayman, Weitzel & Shoulders, LLP

20 N.W. First Street, 9

th Fl.

P.O. Box 916

Evansville, IN 47706-9016

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

MICHAEL D. MANKOWSKI

Assistant Attorney General

Environmental Bureau

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: June 20, 2008

IG1NA

RECEIVED

CLERK'S OFFICE

CERTIFICATE OF SERVICE

JUN' 2 5 2008

STATE OF ILLINOIS

Pollution Control

Board

I hereby certify that I did on June 20, 2008, 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:

Southwind Construction Corp.

c/o Dirck H. Stahl

Ziemer, Stayman, Weitzel & Shoulders, LLP

20 N.W. First Street, 9

Fl.

P.O. Box 916

Evansville, IN 47706-9016

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

MICHAEL D.

MANKOWSKI

44(0

Assistant Attorney General

This filing is submitted on recycled paper.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK'S

ECEI

OVIE

PEOPLE OF THE STATE OF ILLINOIS,0

RIGINAL

STATE OF ILLINOIS

Complainant,

Pollution Control Board

PCB No. 07-32

(Enforcement - Water)

SOUTHWIND CONSTRUCTION CORP., )

an Indiana corporation,

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 5131(c)(2) (2006), 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) (2006). In support of

this motion, Complainant states as follows:

The parties have reached agreement on all outstanding issues in this matter.

This agreement is presented to the Board in a Stipulation and Proposal for

Settlement, filed contemporaneously with this motion.

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) (2006).

JUN` 2

5 2008

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division /7

BY:

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) (2006).

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

Assistant Attorney General

500 South Second Street

Springfield, Illinois 62706

217/782-9031

Dated: June 20, 2008

RECEIVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARMERK'S OFFICE

PEOPLE OF THE STATE OF ILLIrlItS

Complairiant

)

? )

SOUTHWIND CONSTRUCTION CORP.,

an Indiana corporation,

Respondent.

JUN 2 5 2008

STATE OF ILLINOIS

Pollution Control Board

PCB No. 07-32

(Water-Enforcement)

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 SOUTHWIND CONSTRUCTION CORP. ("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. This stipulation of facts is made and agreed upon for

purposes of settlement only and as a factual basis for the Board's approval of this Stipulation and

issuance of relief. None of the facts stipulated herein shall be introduced into evidence in any

other proceeding regarding the violations of the Illinois Environmental Protection Act ("Act"),

415 ILCS 5/1 et seq. (2006), and the Board's Regulations, alleged in the Complaint except as

otherwise provided herein. It is the intent of the parties to this Stipulation that it be a final

adjudication of this matter.

I. STATEMENT OF FACTS

Parties to the Stipulation

On November 1, 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 (2006),

against the Respondent.

The Illinois EPA is an administrative agency of the State of Illinois, created

pursuant to Section 4 of the Act, 415 ILCS 5/4 (2006).

At all times relevant to the Complaint, Respondent was and is an Indiana

corporation that is authorized to transact business in the State of Illinois.

At all times relevant to this Complaint, Southwind was the contractor for the Lake

Arlann sediment removal project.

Lake Arlann is a natural lake previously called Lake Meyers, located in Pekin,

Illinois.

The Lake Arlann sediment removal project utilized a hydraulic dredging process

to remove approximately 330,000 cubic yards of accumulated sedimentation and siltation from

Lake Arlann.

The project required the construction of a confined detention facility ("CDF"),

located across 14

Street from Lake Arlann, in order to store and de-water the sediment

hydraulically dredged and pumped from the lake bottom to the CDF. The CDF was an earthen

lagoon constructed of compacted earthen dikes with approximately 550,000 cubic yards of

capacity. Discharge from the CDF flowed back into Lake Arlann.

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 Sections 12(a) of the Act, 415

ILCS 5/12(a) (2006), and Section 302.203 of the Board's Water Pollution

Regulations, 35 Ill. Adm. Code 302.203

Count II:

EFFLUENT VIOLATIONS, in violation of Sections 12(a) & (f) of the

Act, 415 ILCS 5/12(a) & (f) (2006), and Sections 304.124(a) and

309.102(a) of the Board's Water Pollution Regulations, 35 Ill. Adm. Code

304.124(a) and 309.102(a).

The Complainant agrees to exclude the Respondent from Counts

III

and IV of the Complaint.

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 or this Stipulation, and

this Stipulation shall not be interpreted as including such admission.

Compliance Activities to Date

The Lake Arlann sediment removal project has been completed. At the end of the

project, the Respondent employed proper technology, namely a polyamine flocculent and silt

curtain to reduce the amount of total suspended solids ("TSS") entering Lake Arlann from the

CDF. The area of Lake Arlann surrounding the CDF outlet was the last area dredged, removing

the majority of sediment that escaped the CDF.

II. APPLICABILITY

This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA

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. 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 for all violations alleged in the Complaint in this matter, for

purposes of Sections 39 and 42 of the Act, 415 ILCS 5/39 and 42 (2006).

III. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE

Section 33(c) of the Act, 415 ILCS 5/33(c) (2006), 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:

the character and degree of injury to, or interference with the

protection of the health, general welfare and physical property of

the people;

the social and economic value of the pollution source;

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;

the technical practicability and economic reasonableness of

reducing or eliminating the emissions, discharges or deposits

resulting from such pollution source; and

any subsequent compliance.

In response to these factors, the parties state the following:

Elevated TSS levels, caused by the project threatened the health of the aquatic life

within Lake Arlann. The extent of deviation from the requirements of the Act and the violations

by the Respondent have a substantial adverse effect on the statutory and regulatory process.

The Respondent implemented additional control measures to mitigate the

discharge of silt from the site at a cost to itself, and thus no economic benefit was accrued by the

Respondent in this matter.

Operation of CDF and dredging project was suitable for the area in which it

occurred.

The use of a flocculent and sufficient stormwater controls at the site was both

technically practicable and economically reasonable.

Once having been notified of its non-compliance, the Respondent made

substantial efforts to come into compliance with the Act and the Board's regulations.

IV. CONSIDERATION OF SECTION 42(H) FACTORS

Section 42(h) of the Act, 415 ILCS 5/42(h) (2006), 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:

the duration and gravity of the violation;

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;

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:

The Respondent began dredging Lake Arlann in April of 2004. Elevated TSS

levels were observed in the lake as early as April 15, 2004. Insufficient stormwater controls were

also observed at this time. TSS violations persisted until at least June 2005.

The Respondent made substantial efforts to come back into compliance with the

Act, Board regulations and applicable federal regulations, once the Illinois EPA notified it of its

noncompliance.

The Respondent implemented additional control measures to mitigate the

discharge of silt from the site at a cost to itself, and thus no economic benefit was accrued by the

Respondent in this matter.

Complainant and the Illinois EPA have determined, based upon the specific facts

of this matter, that a payment of Two Thousand Five Hundred Dollars ($2,500.00) will serve to

deter further violations and aid in future voluntary compliance with the Act and Board

regulations.

A review of Illinois EPA records does not indicate any previous enforcement

action taken by the Illinois EPA against Southwind Construction Corp.

Southwind Construction Corp. did not voluntarily disclose to the Illinois EPA the

violations that are the subject of this case.

The settlement of this matter does not include a supplemental environmental

project.

V. TERMS OF SETTLEMENT

Payment

The Respondent shall pay the sum of Two Thousand Five Hundred Dollars

($2,500.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.

from the date the Board adopts and accepts this Stipulation, in a manner prescribed below.

Payment Procedures

All payments required by this Stipulation shall be made by certified check or money order

payable to the Illinois EPA for deposit into the Environmental Protection Trust Fund ("EPTF").

Payments 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

The name, case number and the Respondent's federal tax identification number shall appear on

the face of the certified check or money order. A copy of the certified check or money order and

any transmittal letter shall be sent to:

Michael D. Mankowski

Assistant Attorney General

Environmental Bureau

500 South Second Street

Springfield, Illinois 62702

Release from Liability

In consideration of the Respondent's payment of the Two Thousand Five Hundred Dollars

($2,500.00) and any specified costs and accrued interest, completion of all activities required

hereunder, and upon the 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 November 1,

2006. 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:

criminal liability;

liability for future violation of state, federal, local, and common laws and/or

regulations;

liability for natural resources damage arising out of the alleged violations; and

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 (2006), or entity other than the

Respondent.

Enforcement and Modification of Stipulation

Upon the entry of the Board's Order approving and accepting this Stipulation, that Order

is a binding and enforceable order of the Board and may be enforced as such through any and all

available means.

Execution of Stipulation

The undersigned representatives for each party to this Stipulation 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.

BY:

THOMAS DAVIS, Chief

Environmental Bureau

Assistant Attorney General

DATE:

51/

l/0 6r

WHEREFORE, the parties to this Stipulation 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

FOR THE ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

DOUGLAS P. SCOTT, Director

Illinois Environmental Protection Agency

SOUTHWIND CONSTRUCTION CORP.

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