BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
PEOPLE OF THE STATE
OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
No. 08-092
(Enforcement-Water)
)
)
)
)
)
)
)
)
ADVANTAGE NATIONAL BANCORP, INC., an)
Illinois corporation and VACALA
)
CONSTRUCTION, INC., an Illinois corporation, )
)
)
NOTICE OF FILING
TO:
John Reagan
(VIA ELECTRONIC FILING)
Wintrust Financial Corp.
1949 St. Johns Ave.
Highland Park, Illinois 60035
PLEASE TAKE NOTICE that today I have electronically filed with the Office
of
the Clerk of the Pollution Control Board a Stipulation and Proposal for Settlement and a
Motion to Request Relief from Hearing, true and correct copies
of which is attached and
hereby served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:
'1/
tuu1A ((
(j"
el-
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-0608
Electronic Filing - Received, Clerk's Office, September 25, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
No. 08-092
(Enforcement-Water)
)
)
)
)
)
)
)
)
ADVANTAGE NATIONAL BANCORP, INC., an )
Illinois corporation and VACALA
)
CONSTRUCTION, INC., an Illinois corporation, )
)
)
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 ADVANTAGE NATIONAL BANCORP, INC., and VACALA CONSTRUCTION, INC.
("Respondents"), 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
Electronic Filing - Received, Clerk's Office, September 25, 2008
I.
STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On May 28, 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 Respondents.
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 Advantage National Bancorp,
Inc. ("Advantage"), was and is an Illinois corporation that is authorized to transact business in
the State
of Illinois.
4.
At all times relevant to the Complaint, Respondent Vacala Construction, Inc.
("Vacala") was and is an Illinois corporation that is authorized to transact business in the State
of
Illinois.
5.
At all times relevant to the Complaint, Respondent Advantage owned a 1.84 acre
parcel
ofland located at 165 West Lake Street, Bloomingdale, DuPage County, Illinois ("Site").
6.
At all times relevant to the Complaint, Respondent Vacala conducted construction
activities on the Site on behalf
of Respondent Advantage.
7.
On November 1, 2006, the Illinois EPA, inspected the Site.
8.
At this time, silt fencing was not properly anchored along the southern edge of the
property and soil along the southeast edge
of the property and along the edges of the construction
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Electronic Filing - Received, Clerk's Office, September 25, 2008
site entrance had no erosion control measures in place. Additionally, a complete stormwater
pollution prevention plan
("S WPPP") and inspection reports were not available at the Site as
required by the terms
of the National Pollutant Discharge Elimination System ("NPDES")
general permit for storm water discharges.
9.
On March 22, 2007, the Illinois EPA again inspected the Site.
10.
At this time, silt fencing was lacking or not being maintained on the Site, and
storm sewer inlets on the site had no erosion control measures in place.
11.
From May 4,2006, to July 27,2007, the Site was covered by a NPDES permit for
general storm water discharges, numbered
ILR1 OF300.
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondents have violated the
following provisions
of the Act and Board regulations:
Count
I:
Count II:
Count III:
Water Pollution, in violation of Section 12(a) of the Act, 415 ILCS
5/12(a) (2006).
Water Pollution Hazard, in violation
of Section 12(d) of the Act, 415
ILCS 5/12(d) (2006).
Failure to Comply with NPDES Permit, in violation
of 12(f) of the Act,
415 ILCS 5/12(f) (2006), and Section 309.102(a)
of35
Ill.
Adm. Code.
C.Admission of Violations
The Respondents admit to the violations alleged in the Complaint filed in this matter and
referenced within Section
LB.
herein.
3
Electronic Filing - Received, Clerk's Office, September 25, 2008
D.
Compliance Activities to Date
1.
On November 6,2007, Respondent Vacala submitted to the Illinois EPA
photographs
of the Site and documentation, including invoices for purchase of silt fencing and
street sweeping. Vacala submitted photographs that indicated that construction and landscaping
activities had been completed and sufficient erosion control measures were in place at the Site.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA
and the Respondents, and any officer, director, agent, or employee of the Respondents, as well as
any successors or assigns
of the Respondents. The Respondents shall not raise as a defense to
any enforcement action taken pursuant to this Stipulation the failure
of any of their 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
Respondents 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:
4
Electronic Filing - Received, Clerk's Office, September 25, 2008
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 to this Stipulation state the following:
1.
Human health and the environment were threatened and the Illinois EPA's
information gathering responsibilities hindered by the Respondents' violations.
2.
There is social and economic benefit to the Site.
3.
Operation of the Site was suitable for the area in which it occurred.
4.
Installation of adequate erosion controls at the Site and compliance with the terms
of the NPDES general permit for storm water discharges was both technically practicable and
economically reasonable.
5.
Respondents have subsequently complied with the Act and the Board regulations.
5
Electronic Filing - Received, Clerk's Office, September 25, 2008
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 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.
6
Electronic Filing - Received, Clerk's Office, September 25, 2008
In response to these factors, the parties to this Stipulation state as follows:
1.
The Respondents violated terms of the NPDES general permit for storm water
discharges from the Site. The violations began on or around November
1, 2006, and were
subsequently individually resolved at various times before November
6,2007.
2.
Respondents Advantage and Vacala were diligent in coming into compliance with
the Act and Board regulations, once the Illinois EPA notified them
of their noncompliance.
3.
The penalty to be paid by Respondents far exceeds any economic benefit derived
from Respondents noncompliance.
4.
Complainant and the Illinois
EPA have determined, based upon the specific facts
of this matter, that a penalty ofTen Thousand Dollars ($10,000.00), to be paid by Respondent
Advantage, and a penalty
of Ten Thousand Dollars ($10,000.00), to be paid by Respondent
Vacala, for a total penalty
of Twenty Thousand Dollars ($20,000.00), 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, Respondents Advantage and
Vacala have 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.
Respondent Advantage shall pay a civil penalty in the sum ofTen Thousand
7
Electronic Filing - Received, Clerk's Office, September 25, 2008
Dollars ($10,000.00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation, and;
2.
Respondent Vacala shall pay a civil penalty in the sum ofTen Thousand Dollars
($10,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
B.
Interest
and Default
1.
If the Respondents fail to make any payment
r~quired
by this Stipulation on or
before the date upon which the payment is due, the Respondents 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 Respondents 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:
8
Electronic Filing - Received, Clerk's Office, September 25, 2008
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 Respondents' 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:
Vanessa Cordonnier
Assistant Attorney General
Illinois Attorney General's Office
69
W. Washington, Suite 1800
Chicago, Illinois 60602
D.
Future Compliance
1.
In addition to any other authority, the Illinois EPA, its employees and
representatives, and the Attorney General, her employees and representatives, shall have the right
of entry into and upon the Respondents' 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 Respondents to
comply with any other federal, state or local laws or regulations, including but not limited to the
Act and the Board Regulations.
9
Electronic Filing - Received, Clerk's Office, September 25, 2008
3.
The Respondents shall cease and desist from future violations of the Act and
Board Regulations that were the subject matter
of the Complaint.
E.
Release from Liability
In consideration of the Respondents' payment of penalties totaling
$20,000.00~
its
commitment to Cease and Desist as contained in Section
VD.3 above, and upon the Board's
approval
of this Stipulation, the Complainant and the Illinois EPA release, waive and discharge
the Respondents 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 Complaint
filed on May 28,2008. The Complainant
reserVes, and this Stipulation is without prejudice to,
all rights
of the State of Illinois against the Respondents 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 Respondents' 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
10
Electronic Filing - Received, Clerk's Office, September 25, 2008
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 Respondents.
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.
(THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK)
11
Electronic Filing - Received, Clerk's Office, September 25, 2008
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 OFILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/
Asbestos
Litiga;tion Division
BY:
DATE:_~7y~~O-l-I_08
_
FOR THE RESPONDENTS:
ADVANTAGE NATIONAL BANK
BY:
DATE:
_
VACALA CONSTRUCTION, INC.
BY:
DATE:
_
12
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
U----
ROBERT A, MESSINA
Chief Legal Counsel
DATE:
_--hl{~_Dcg=----
_
Electronic Filing - Received, Clerk's Office, September 25, 2008
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
BY:
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
Assistant Attorney General
DATE:
_
FOR THE RESPONDENTS:
ADVY::;I~NALM
BY:
~~
)L....--
DATE:
7-t-
ot
.
DATE:
-----!r'------..:j;,------,/'------..:CY----L.'
!_O=------€
_
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
--------------
ROBERT A. MESSINA
Chief Legal Counsel
DATE:
-------------
12
Electronic Filing - Received, Clerk's Office, September 25, 2008
.....
"..
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney General
of
the State of Illinois,
No. 08-0'92
(Enforcement-Water)
)
)
)
)
)
)
)
)
ADVANTAGE
NATIONAL BANCORP, INC., an )
Illinois corporation and VACALA
)
CONSTRUCTION, INC., an Illinois corporation,
)
)
)
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General
of the State of Illinois, and requests relief from the
hearing requirement in the above-captioned matter. In support thereof, the Complainant
states as follows:
1.
On June 5, 2008, the Complaint was accepted for hearing by the Pollution
Control Board ("Board") in this matter. On September
25,2008, a Stipulation and
Proposal for Settlement was filed with the Board.
If accepted, the Stipulation and
Proposal for Settlement will dispose
of the case.
2.
Section 31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2006), allows the parties in certain enforcement cases to request relief
.
from the mandatory hearing requirement where the parties have submitted to the Board a
stipulation and proposal for settlement. Section 31(c)(2) provides:
Notwithstanding the provisions
of subdivision (1) of this subsection (c), whenever
a complaint has been filed on
behalf of the Agency or by the People of the State
Electronic Filing - Received, Clerk's Office, September 25, 2008
of Illinois, the parties may file with the Board a stipulation and proposal for
settlement accompanied by a request for relief from the requirement of a hearing
pursuant to subdivision (1). Unless the Board, in its discretion, concludes that a
hearing will be held, the Board shall cause notice
of the stipulation, proposal and
request for relief to be published and sent in the same manner as is required for
hearing pursuant to subdivision
(1) of this subsection. The notice shall include a
statement that any person may file a written demand for hearing within 21 days
after receiving the notice.
If any person files a timely written demand for hearing,
the Board shall deny the request for relief from a hearing and shall hold a hearing
in accordance with the provisions
of subdivision (1).
3.
No hearing is currently scheduled in the instant case.
4.
The Complainant requests the relief conferred by Section 31 (c)(2) of the
Act.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADIGAN, Attorney General
of the State of Illinois, requests relief from the
requirement
of a hearing pursuant to 415 ILCS 5/31 (c)(2) (2006).
Respectfully submitted,
PEOPLE OF THE STATE
OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By: '1/
aAuM
~
&t
ci<-
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69
W. Washington St., 18th Floor
Chicago, Illinois 60602
(312) 814-0608
Electronic Filing - Received, Clerk's Office, September 25, 2008
CERTIFICATE OF SERVICE
I, VANESSA M. CORDONNIER, an Assistant Attorney General, do certify that I
caused to be mailed this 25 day of September, 2008, the foregoing Motion to Request
Relief from Hearing, Stipulation and Proposal for Settlement, and Notice
of Filing, upon
the persons listed on said notice, by U.S: first-class mail.
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69 West Washington,
18
th
Floor
Chicago,
IL
60602
312-814-0608
Electronic Filing - Received, Clerk's Office, September 25, 2008
