Very truly urs,
Kristen Laughridge Gale
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
RECEIVED
CLERK'S OFFICE
41.16 2 1 2008
STATE OF ILLINOIS
Pollution Control Board
Lisa Madigan
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
August 19, 2008
John T. Therriault, Assistant Clerk
Assistant Clerk of the Board
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
Re:?
People v. Isaacson Construction, Inc.
PCB No. 07-25
Dear Clerk:
Enclosed for filing please find the original and one copy 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 envelope.
Thank you for your cooperation and consideration.
KLG/pjk
Enclosures
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 • (312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S
OFFICE
PEOPLE OF THE STATE OF?
AUG 2 1 2008
ILLINOIS,
?
STATE OF
ILLINOIS
Pollution Control Board
Complainant,
vs.?
)
?
PCB No. 07-25
)?
(Enforcement)
ISAACSON CONSTRUCTION, INC.,
an Illinois corporation,
Respondent.
NOTICE OF FILING
To:?
Fred C. Prillaman
Mohan, Allewelt, Prillaman & Adami
One North Old State Capital Plaza, Ste. 325
Springfield, IL 62701
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, 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
Environmen Enforcem
Litigation
?
ision /
s •
estos
BY:
KRISTEN LAUGHRIDGE GALE
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: August 19, 2008
1
1ST N LAUGHRIDGE GALEO
CERTIFICATE OF SERVICE
I hereby certify that I did on August 19, 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:?
Fred C. Prillaman
Mohan, Allewelt, Prillaman & Adami
One North Old State Capital Plaza, Ste. 325
Springfield, IL 62701
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s):
To:?
John T. Therrault, Assistant 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
Assistant Attorney General
This filing is submitted on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
V
S.
?
PCB No. 07-25
(Enforcement)
ISAACSON CONSTRUCTION, INC.,
an Illinois corporation,
RECEIVED
CLERK'S OFFICE
AUG 2 1 2008
STATE
OF ILLINOIS
Pollution Control Board
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:
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) (2006).
1
MATTHEW J. DU N, Chief
Environmental forceme t/A bestos
Litigati
?
Divisioj
BY:
ISTEN LAUGHRIDGE GALE
Environmental Bureau
Assistant Attorney General
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
LISA MADIGAN
ATTORNEY GENERAL
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: August 19, 2008
2
CL
EovE
EC
0
Control
Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
posztr
A
irounen
j
OFILLINOIS
6
2 12008
PEOPLE OF THE STATE OF ILLINOIS,
?
)
Complainant,?
)
v.?
PCB NO. 07-25
(Enforcement)
ISAACSON CONSTRUCTION, INC.,
?)
an Illinois 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 ISAACSON CONSTRUCTION, INC., ("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.
1
I. STATEMENT OF FACTS
A.?
Parties to the Stipulation
1.
On August 13, 2007, an Amended 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.
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, Respondent was and is an Illinois
corporation that is authorized to transact business in the State of Illinois. At all times
relevant to the Complaint, Respondent owned and/or leased and operated a facility
located at 1300 Fort Jesse Road, Normal, McLean County, Illinois ("site").
B.
?
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondent has violated the
following provisions of the Act and Board regulations:
Count I:
?
Sections 21(a) and 21(e) of the Act, 415 ILCS 5/21(a), (e).
Count II:
?
Section 21(f) of the Act, 415 ILCS 5/21(f), and Section 703.121(a)(1) of
the Board's RCRA Permit Program Regulations, 35 III. Adm. Code
703.121(a)(1).
Count III:
?
Section 21(f)(2) of the Act, 415 ILCS 5/21(f)(2), and Sections 725.113(a),
725.113(b), and 725.173(a) of the Board's Hazardous Waste Treatment,
2
Storage, and Disposal Regulations, 35 III. Adm. Code 725.113(a), (b), and
725.173(a).
Count IV:?
Section 21(f)(2) of the Act, 415 ILCS 5121(f)(2), and Section 725.116(a) of
the Board's Hazardous Waste Operating Regulations, 35 III. Adm. Code
725.116(a).
Count V:
?
Section 21(f)(2) of the Act, 415 ILCS 5121(f)(2), and Sections 725.111 and
725.175 of the Board's Hazardous Waste Treatment, Storage, and
Disposal Regulations, 35 III. Adm. Code 725.111 and 725.175.
Count VI:?
Section 21(f)(2) of the Act, 415 ILCS 5/21(f)(2), and Sections 725.151,
725.152, and 725.153 of the Board's Hazardous Waste Treatment,
Storage, and Disposal Regulations, 35 III. Adm. Code 725.151, 725.152,
725.153.
Count VII:
?
Section 12(a) of the Act, 415 ILCS 5/12(a).
Count VIII: Section 12(d) of the Act, 415 ILCS 5/12(d).
C.?
Admission of Violations
The Respondent admits to the violations of Sections 21(a) and 21(e) of the Act,
415 ILCS 5/21(a), (e), as alleged in paragraphs 23 and 24 of Count 'I of the Amended
Complaint filed in this matter and referenced within Section I.B herein.
3
D.?
Compliance Activities to Date
On April 26, 2004, approximately fifty 55-gallon drums containing contained used
motor oil, rainwater, and two types of concrete sealant were excavated and removed
from the site for disposal; all of the unearthed drums had been crushed. During
excavation, one drum, when punctured during removal, leaked rainwater and used oil; a
second drum leaked a small amount of green, semi-solid concrete sealer; and the third
drum leaked a small amount of thick, viscous, silver-gray rubbery liquid. Subsequently,
all of the crushed drums, together with large quantities of affected soil, were excavated
and removed from the site for disposal as non-hazardous waste. A sample of the
silver-gray liquid, taken during the April 26, 2004, removal, was later analyzed for
ignitability. Complainant takes the position that the Illinois EPA analysis of the silver-
gray liquid revealed that it had a flashpoint less then 70° Fahrenheit, and was therefore
a hazardous waste pursuant to Section 721.103 of the Board's Hazardous Waste
Regulations, 35 III. Adm. Code 721.103, because it exhibited the characteristic of
ignitability, but the Respondent disputes the accuracy and reliability of those results.
Based upon groundwater test results obtained by Respondent's consultants and
reviewed by Complainant and the Illinois EPA, the parties to this Stipulation agree that,
insofar as it relates to Respondent's burial of waste that is the subject of the Amended
Complaint:
(a) Groundwater monitoring conducted after removal of contaminated soils
demonstrated groundwater contamination including Arsenic, Cadmium,
Chromium, Lead, Mercury and Bis(2-ethylhexyl) phthalate, in excess of
4
applicable Class I standards within 35 III. Admin. Code 620;
(b)
Following removal of contaminated soils, groundwater was sampled on
numerous occasions from August 2004 to February 2007. Since
December 2004, the only contaminant of concern has been Lead
Respondent has demonstrated four consecutive quarters of groundwater
results that are below Class I groundwater standards for Lead in calendar
year 2005;
(c)
Lead is not included within the chemical analysis of either of the two
concrete sealants used by Respondent; and,
(d)
No further monitoring is required regarding the condition of groundwater
as impacted by the allegations contained in the Amended Complaint.
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
5
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 5133(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 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
6
5.?
any subsequent compliance.
In response to these factors, the parties to this Stipulation state the following:
1.
Human health and the environment were threatened by the Respondent's
violations.
2.
There is social and economic benefit to the facility.
3.
Operation of the facility was suitable for the area in which it occurred.
4.
The proper disposal of wastes is both technically practicable and
economically reasonable.
5.
Respondent 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 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
7
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 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.
The Respondent's burial of waste was illegal and continued for several
months.
2.
The Respondent was not diligent in its burial of waste but was both
cooperative and diligent in attempting to come back into compliance with the Act, Board
regulations and applicable federal regulations, once the Illinois EPA discovered the
burial of waste.
3.
The costs of proper disposal of waste avoided by the Respondent's burial
of waste were vastly outweighed by the remedial expenditures incurred to remove the
waste and soil.
4.
Complainant and the Illinois EPA have determined, based upon the
specific facts of this matter, that a penalty of One Hundred Thousand Dollars
8
($100,000.00) will serve to deter further violations and aid in future voluntary
compliance with the Act and Board regulations.
5.
To Complainant's and the Illinois EPA's knowledge, Respondent has no
previously adjudicated violations of the Act.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental
environmental project.
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
?
The Respondent shall pay a civil penalty in the sum of One Hundred
Thousand Dollars ($100,000.00). Payment shall be made in installments according to
the following schedule: The first of five annual payments in the amount of $20,000.00,
within ninety (90) days from the date the Board adopts and accepts this Stipulation and
the next four payments on the anniversary dates of the first payment.
B.
Stipulated Penalties, Interest and Default
1.?
If the Respondent fails to make any payment required by this Stipulation
on or before the date upon which the payment is due, the Respondent 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.
9
2.
?
Pursuant to Section 42(g) of the Act, interest shall accrue on any penalty
amount owed by the Respondent 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 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
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:
Environmental Bureau
Illinois Attorney General's Office
500 South Second Street
Springfield, Illinois 62706
D.
Future Compliance
1.?
In addition to any other authorities, the Illinois EPA, its employees and
1 0
representatives, and the Attorney General, her employees and representatives, shall
have the right of entry into and upon the Respondent's facility which is the subject of
this Stipulation, at all reasonable times for the purposes of conducting inspections and
evaluating compliance status. 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.
2. 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.
E.?
Release from Liability
Upon completion of the Respondent's payment of the $100,000.00 penalty, and
upon the Board's approval of this Stipulation, the Complainant releases, waives and
discharges the Respondent from any further liability or penalties for the 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 Amended Complaint filed on August 13, 2007. 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 other than that settled in the matter of
People v. Isaacson
11
Construction, Inc.,
McLean County Circuit Court No. 06-CF-814;
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.
F.
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.
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.
12
ROBERT A. MESSINA
Chief Legal Counsel
DATE:
q q10
BY:
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
FOR THE ILLINOIS ENVIRONMENTAL
ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
077
067--
BY:
DATE:
ISAACSON CONSTRUCTION, INC.
BY:
• fig•
DATE:
0 g • 1
08
Name: OAVi b a, tsAAe„..se>,..)
Title:
PaEsI
13