BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ROCKFORD BLACKTOP CONSTRUCTION
CO., an Illinois corporation, and
WESTLAKE UTILITIES, INC.,
Respondents.
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PCB No. 08-
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NOTICE OF FILING
To:
Ms. Madonna McGrath (VIA ELECTRONIC FILING)
Baker
&
Daniels
.
300 N. Meridian Street
Suite 2700
Indianapolis, Indiana 46204
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of
the Illinois Pollution Control Board by electronic filing the Stipulation and Proposal for
Settlement with Westlake Utilities, Inc., and Motion to Request Relief from Hearing
Requirement, true and correct copies which are attached and hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney Ge
of the State of Illinois
BY:
SA
A.
VAIL
si ant Attorney General
nvironmental Bureau
69 W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-5361
.
DATE: August 4, 2008
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ROCKFORD BLACKTOP CONSTRUCTION
CO., an Illinois corporation, and
WESTLAKE UTILITIES,
INC.,.
an Illinois corporation,
Respondents.
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PCB No. 08-
) (Enforcement - Water)
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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) (2006), 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)(I)
(2006). In support of this motion, Complainant states as
follows:
1.
The Complaint in this matter alleges violations of Sections 12(a), 12(d)
and 12(f)
of the Act, 415 ILCS 5/12(a), 12(d) and 12(f) (2006).
2.
Complainant is filing this Motion and a Stipulation and Proposal for
Settlement with Westlake Utilities, Inc. with the Board.
3.
The parties have reached agreement on all outstanding issues in this
matter.
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
4.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement with Westlake Utilities, Inc. filed this same date.
5.
All parties agree that a hearing on the Stipulation and Proposal for
Settlement with Westlake Utilities, Inc. 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).
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)(I) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illino'
TV,,,,,...,,SA
A.
VAIL
si ant Attorney General
.n ronmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-5361
DATE: August 4,2008.
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ROCKFORD BLACKTOP CONSTRUCTION
COMPANY, an Illinois corporation, and
WESTLAKE UTILITIES, INC.,
an Illinois corporation,
Respondents.
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PCB No. 08-
(Enforcement-Water)
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH
WESTLAKE UTILITIES, INC.
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 Respondent, WESTLAKE UTILITIES, INC., an Illinois corporation, ("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'sRegulations, alleged in the.
Complaint except as otherwise provided herein.
It
is the intent of the parties to this Stipulation
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
that it be a final adjudication of this matter.
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On August 4, 2008, 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, Westlake Utilities, Inc. ("Westlake"
or "Respondent") and Rockford Blacktop
Construction Company, an Illinois corporation.
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 (2006).
3.
At all times relevant to the Complaint, Westlake was and is an Illinois corporation
registered and qualified to transact business in the State
of Illinois.
4.
At all times relevant to the Complaint, Westlake owned and operated a
wastewater lagoon-typetreatment plant ("WWTP"). The
WWTP provides service to the
Westlake Village residential development and is located in Winnebago County, Illinois.
5.
At all times relevant to the Complaint, Rockford Blacktop Construction Company
("Rockford Blacktop") was and is an Illinois corporation registered and qualified to transact
business in the State
of Illinois.
6.
The
WWTP is situated on approximately 10 acres and consists of a blower house
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
and three treatment cells, identified as "Cell One", "Cell Two" and "Cell Three", which utilize an
aeration process to treat sanitary waste prior to discharge to Coolidge Creek.
7.
At all times relevant to the Complaint, Rockford Blacktop was the contractor
responsible for performing repair work on Cell Three, which included dewatering, removing rip-
rap and trees from the Cell'sbanks, and regrading and preparing the Cell for placement
of a
synthetic membrane liner.
8.
On or about October 20,2006, Rockford Blacktop began construction work at the
WWTP to repair Cell Three.
9.
On October 20, 2006, the Illinois EPA inspected the WWTP and discovered water
being pumped from Cell Three to an area adjacent to Coolidge Creek without proper erosion and
silt control measures in place to prevent the migration
of sediment into Coolidge Creek, and
without an Illinois EPA issued National Pollutant Discharge Elimination System ("NPDES")
permit allowing the discharge
of stormwater associated with the construction activities at the
WWTP.
10.
Rockford Blacktop completed construction activities at the WWTP on or about
November 9, 2006.
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondent Westlake has violated the
following provisions
ofthe Act and Board regulations:
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
Count I:
Count II:
Countm:
Causing, threatening or allowing water pollution, in violation of Section
12(a)
ofthe Act, 415 ILCS 5/12(a) (2006).
Creating a water pollution hazard, in violation
of Section 12(d) of the
Act, 415 ILCS 5/12(d) (2006).
Failure to obtain an NPDES stormwater permit, in violation
of Section
12(f)
of the Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) of the
Board'sWater Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
C.
Non-Admission of Violations
The
Respond~nt
Westlake 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
m.B herein, and this Stipulation shall not be interpreted as including
such admission.
D.
Compliance Activities to Date
On July 17, 2007, Illinois EPA issued to Respondent Westlake General NPDES Permit
No. ILR10H658 for Storm Water Discharges from Construction Site Activities at the WWTP.
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA and
the Respondent Westlake, and any officer, director, agent, or employee
of Westlake, as well as
any successors or assigns
of Westlake. Westlake 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.
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:
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
ofpriority of location in the area
involved;
4.
the technical practicability and economic reasonableness cjf reducing or
eliminating the emissions, discharges or deposits resulting from such
pollution source; and
5.
any subsequent compliance.
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
In response to these factors, the parties to this Stipulation state the following:
1.
The alleged violations potentially threatened human health and the environment
by allowing conditions to exist that could have contaminated the waters of the State.
2.
The WWTP provides service to the Westlake Village residential subdivision and
has a social and economic benefit.
3.
The WWTP is suitable for the area in which it is located.
4.
It
is both technically practicable and economically reasonable to obtain a NPDES
Storm Water Permit and implement adequate erosion control measures at the WTTP in
compliance with the Act and Board regulations.
5.
Respondent Westlake has subsequently complied with the Act and the Board
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:
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 relieftherefrom 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;
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
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 ofpreviously 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 this Act, but which the ,respondent is not
otherwise legally required to perform.
In response to these factors, the parties to this Stipulation state as follows:
1.
Complainant has alleged that the violations continued from at least October 20,
2006 to at least November 9,2006.
2.
Respondent Westlake was diligent in attempting to come back into compliance
with the Act, and Board regulations, once the Illinois EPA notified it
of its noncompliance.
3.
The penalty obtained exceeds any economic benefit realized by Westlake as a
result
of the delay in the installation of erosion prevention measures at the WTTP.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts
of this matter, that a penalty of Twelve Thousand Dollars ($12,000.00) will serve to deter further
violations and aid
in future voluntary compliance with the Act and Board regulations.
5.
To Complainant'sknowledge, Respondent Westlake has no previously
adjudicated violations
of the Act.
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
v. TERMS OF SETTLEMENT
A.
Penalty Payment
The Respondent Westlake shall pay a civil penalty in the sum of Twelve Thousand
Dollars ($12,000.00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation.
B.
Stipulated Penalties; Interest and Default
1.
If the Respondent Westlake fails to make any payment required by this Stipulation
on or before the date upon which the payment is due, Westlake shall be in default and the
remaining unpaid balance
of the penalty, plus any accrued interest, shall be due and owing
immediately. In the event of default, the Complainant shall be entitled to reasonable costs of
collection, including reasonable attorney's fees.
2.
Pursuant to Section 42(g) of the Act, interest shall accrue on any penalty amount
owed by the Respondent Westlake not paid within the time prescribed herein. Interest on unpaid
penalties shall begin to accrue from the date such are due and continue to accrue to the date full
payment is received. Where partial payment is made on any penalty amount that is due, such
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
partial payment shall be first applied to any interest on unpaid penalties then owing.
C.
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
I
021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name, case number and the Respondent Westlake'sfederal tax identification number shall
appear on the face
of the certified check or money order. A copy ofthe certified check or money
order and any transmittal letter shall be sent to:
Vanessa
A.
Vail
Assistant Attorney General
Environmental Bureau
69 W. Washington St.,
18
th
Floor
Chicago, Illinois 60602
D.
Future Compliance
This Stipulation in no way affects the responsibilities of Respondent Westlake to comply
with any other federal, state or local laws
or regulations, including but not limited to the Act and
the Board Regulations.
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
E.
Release from Liability
In
consideration of the Respondent Westlake'spayment ofa $12,000.00 penalty, and
upon the Board'sapproval
of this Stipulation, the Complainant releases, waives and discharges
the Respondent Westlake from any further liability or penalties for the violations
of the Act and
Board Regulations that were the subject matter
ofthe Complaint herein. The release set forth
above does not extend to any matters other than those expressly specified in Complainant's
Complaint filed on August
4, 2008, neither does it extend to any other person other than the
signatory to this Stipulation. The Complainant reserves, and this Stipulation is without prejudice
to, all rights
of the State of Illinois against the Respondent Westlake 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 Westlake'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 ofthe Act, 415 ILCS 5/3.315, or entity other than the Respondent
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
Westlake.
F.
Enforcement of Stipulation
Upon the entry ofthe Board'sOrder 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.
G.
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.
WHEREFORE, the parties to this Stipulation request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
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PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
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
.,'
BY:
-------1t-----..:P-\'L..30L..:~=-------:~'=-·=·--~--·J3X;---RIt!i.
fms~
J
'..
".,
Chief Legal Counsel
DATE:
7
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.~_.
__
I
DATE:
~..:::.b..k:Z~
_
WESTLAKE UTILITIES, INC.
Name:
Lawrence N. Schumacher
Title:
President and CEO
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DATE:
7/21/08
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
ROSE
y
C
~Id""-'
Environmental Bureau -
Assistant Attorney General
DATE:
7;'
0
I---=o=---~
_
{~
WESTLAKE UTILITIES, INC.
BY:
Name:
._----------
Title:
-----------
12
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
DATE:
~-=-O....!o<:Z~
_
DATE:.
_
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
CERTIFICATE OF SERVICE
.
I, VANESSA
A.
VAIL, an Assistant Attorney General, do certify that I caused to
be served this 4th day of August 2008, true and correct copies of the Stipulation and
Proposal for Settlement with Westlake Utilities, Inc., Motion to Request Relief from Hearing
Requirement and Notice
of Filing by certified mail with return receipt requested to the person
listed on the said Notice
of Filing, and depositing same with the United States Postal Service
located at 69 West Washington Street, Chicago, Illinois, 60602.
PCB 09-11 Electronic Filing - Received, Clerk's Office, August 4, 2008
