BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
PRAlRIE
MATERIAL SALES, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
PCB 2008-044
(Enforcement - Water)
NOTICE OF FILING
TO:
Jane
K.
Murphy.
Jones Day
77 West Wacker
Chicago, IL 60601
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that on the 2
nd
day of October, 2008, I filed with the Clerk of
the Illinois Pollution Control Board a Stipulation and Proposal for Settlement, and Motion to
Request
Relief From Hearing Requirement, copies of which are attached hereto and hereby
served upon you.
PEOPLE
OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State
of Illinois
By:~~L~~~,~~~~"""",,,
REBECCA A. BURLINGHAM
Assistant Attorney General .
Environmental Bureau
69 W. Washington St., 18th Fl.
Chicago, Illinois 60602
(312) 814-3776
Date: October 2, 2008
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, October 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
PRAIRIE
MATERIAL SALES, INC.,
)
an Illinois corporation,
)
)
Respondent.
)
PCB 2008-044
(Enforcement - Water)
MOTION TO REQUEST RELIEF
FROM HEARING REOUIREMENT
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 February 13, 2008, a Complaint was filed with the Pollution Control Board
("Board") in this matter.
On October 2, 2008, a Stipulation and Proposal for Settlement was
filed with the Board.
2.
Section
31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31 (c)(2), effective August
1, 1996, 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 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
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Electronic Filing - Received, Clerk's Office, October 2, 2008
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), effective August 1, 1996.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State~OiS
By:
){bL~
REBECCA
A.
BURLINGHAM
a,
flwl.
~.
r~
~
.
Assistant Attorney General
Environmental
Bureau
69
w.
Randolph St., 18th Fl.
Chicago, Illinois 60602
(312) 814-3776
2
Electronic Filing - Received, Clerk's Office, October 2, 2008
if
1
'
.•
~
,
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
PRAIRIE MATERIAL SALES, INC.,
an Illinois corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
PCB No. 2008-044
(Enforcement
- Water)
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"),
Respondent PRAIRIE MATERIAL SALES, INC., now known as Southfield Corpbration, an
Illinois corporation ("Southfield"), and VCNA Prairie Illinois Building Materials, LLC, a
Delaware limited liability company ("VCNA"), 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 ofthis 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 that it be a final
adju4ication of this matter.
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Electronic Filing - Received, Clerk's Office, October 2, 2008
.l
By entering into this Stipulation, VCNA submits itselfto the Board'sjurisdiction.
I. STATEMENT OF FACTS
A.
Parties to the Stipulation .
1.
On February 13,2008, a Complaint was filed on behalf of the People of the State
of Illinois by Lisa Madigan, Attorney General ofthe 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 Southfield.
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, Southfield was and is an Illinois
corporation that is authorized to transact business in the State
of Illinois. At all times relevant to
the Complaint, until February
1, 2008, Southfield owned and operated a concrete production
facility in its Yard 1014 located at 799 South Route
53 in the Village of Addison, DuPage
County, Illinois. ("Facility" or "Site").
4.
At the Facility, Southfield fonnerly engaged in the batching
of aggregate and
cementitious materials to produce ready-mix concrete.
5.
On February 1,2008, VCNA purchased certain assets of Southfield including, but
not limited to, the Facility. VCNA currently engages in the batching
of aggregate and
cementitious materials to produce ready-mix concrete at the Facility.
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Electronic Filing - Received, Clerk's Office, October 2, 2008
B.
Allegations
of Non-Compliance
Complainant and the Illinois EPA contend that Southfield has violated the following
provisions of the Act and Board regulations:
Count
I:
Count II
Count III
Count IV
Water Pollution
Violation
of Section 12(a) ofthe Act, 415 ILCS 5/12(a)(2006)
Offensive Discharges
Violation
of Section 12(a) of the Act, 415 ILCS 5/12(a)(2006), and
Sections 304.105 and 304.106
of the Board Water Pollution Regulations,
35 Ill. Adm. Code 304.105 and 304.106
Water Pollution Hazard
Violation
of Section 12(d) ofthe Act, 415 ILCS 5/12(d)(2006)
Discharge
of Process Wastewaters Without
An
NPDES Permit
Violation
of Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and Section
309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102(a)
Additionally, Complainant contends that Southfield has violated the following provisions
of the Act and the Board regulations, as observed during an April 25, 2008 inspection of the
Facility
by the Illinois EPA:
Violation
I:
Violation II:
Failure to Comply With the Terms
ofNPDES Permit ILR005566
Violation
of Section 12(f) of the Act, 415 ILCS 5/12(f)(2006), and
Section 309.1 02(a)
of the Board Water Pollution Regulations, 35 Ill.
Adm. Code 309.102(a)
Failure to Employ Site Stabilization Practices as Required
by NPDES
Permit ILRlOH169
Violation of Section 12(f) ofthe Act, 415 ILCS 5/12(f)(2006), and
Section 309.1 02(a)
of the Board Water Pollution Regulations, 35 Ill.
Adm. Code 309.102(a)
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Electronic Filing - Received, Clerk's Office, October 2, 2008
C.
Non-Admission of Violations
Southfield neither admits nor denies the violations alleged in the Complaint filed in this
matter or observed by the Illinois EPA during its April 25, 2008 inspection of the Facility and
referenced within Section LB, above.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the Illinois EPA
Southfield and VCNA, and any officer, director, agent, employee or member
of Southfield or .
VCNA, as well as any successors or assigns of Southfield orVCNA. Southfield or VCNA 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, members, 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
of priority of location in the area
involved;
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Electronic Filing - Received, Clerk's Office, October 2, 2008
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.
The environment was threatened and the Illinois EPA'sinformation gathering
responsibilities hindered by Southfield'sviolations.
2.
There is social and economic benefit to the Facility.
3.
The operation of the Facility was suitable for the area in which it occurred.
4.
Preventing water pollution at the Site, and obtaining coverage under the general
stormwater permit and compliance with its terms, are both technically practicable and
economically reasonable.
5.
Southfield and VCNA have subsequently complied with the Act and the Board
Regulations.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) ofthe 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 ofthe 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
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Electronic Filing - Received, Clerk's Office, October 2, 2008
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
ofthis Section, the non-compliance to the Agency; and
7.
whether the respondent has agreed to undertake a Asupplemental
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.
On November 17, 2006, the Illinois EPA confirmed the presence of sediments in
the drainage ditch outside the Facility. In November 2006, there was sedimentation in the ditch
for approximately Y2 mile downstream of Southfield'sdischarge outfall, and total suspended
solids concentrations were above regulatory effluent concentration limits. From the beginning
of
construction of a process wastewater recycling system until February 13, 2007, the Facility was
not under the coverage
of the General Storm Water NPDES Permit for Construction Activities
("the NPDES General Permit").
2.
Upon notification of the need for coverage under the NPDES General Permit for
its construction site activities, Southfield ceased further construction and applied to the Illinois
EPA for coverage under that permit. Southfield resumed construction after it received notice
from the Illinois EPA
of coverage under the NPDES General Permit. Once the Illinois EPA
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Electronic Filing - Received, Clerk's Office, October 2, 2008
notified Southfield that the solids in the drainage ditch were from the Facility, Southfield hired a
cleanup contractor to remove sediments from the ditch.
3.
The penalty obtained exceeds any economic benefit realized by Southfield as a
result
of its delay in obtaining coverage under the NPDES General Permit and constructing the
process wastewater recycling system.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts
ofthis matter, that a penalty of Fifty-Five Thousand Dollars ($55,000.00) will serve to deter
further violations and aid in future voluntary compliance with the Act and Board regulations.
5.
In 1993, the State and Southfield settled an air pollution enforcement case
concerning a Southfield facility in Kane County for $2,250.00. In 1998, the State and Dixon-
Marquette Cement, Inc., a division
of Southfield, settled a water pollution enforcement case for
$40,000.00 involving a quarry and cement kiln operation then owned by Southfield in Lee
County.
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
I.
Southfield and VCNA shall jointly and severally pay a civil penalty of Fifty-Five
Thousand Dollars ($55,000:00) within thirty (30) days from the date the Board adopts and
accepts this Stipulation.
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Electronic Filing - Received, Clerk's Office, October 2, 2008
B.
Interest and Default
1.
If Southfield or VCNA fails to make any payment required by this Stipulation on
or before the date upon which the payment is due, Southfield and VCNA shall be in default and
the remaining unpaid balance
of the penalty, plus any accrued interest at the rate specified in
Section 42(g)
of the Act, 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 Southfield and VCNA 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
Southfield and veNA shall jointly and severally pay the amount of Fifty-Five Thousand
Dollars ($55,000.00) to the Illinois EPA for deposit into the Environmental Protection Trust
Fund ("EPTF"). Payment shall be made by certified check or money order and 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 either Southfield'sor VCNA'sfederal tax identification number as
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Electronic Filing - Received, Clerk's Office, October 2, 2008
..
.-
applica~le
shall appear on the face ofthe certified check or money order. A copy ofthe certified
check or money order and any transmittal letter shall be sent to:
Rebecca
A.
Burlingham
Supervising Attorney
Environmental Bureau
69 W. Washington St., 18
th
Floor
Chicago, Illinois 60602
D.
Future Compliance
1.
Pursuant to the terms ofNPDES Permit No. ILR005566 (the "NPDES Permit"),
VCNA shall keep the stormwater pollution plan ("SWPPP") for the Facility updated to reflect
the current status
of the Site.
2.
Pursuant to the terms ofthe NPDES Permit, VCNA shall ensure
~hat
its
employees at the Site are adequately trained as to the requirements
of the NPDES Permit and the
SWPPP.
3.
Pursuant to the terms ofthe NPDES Permit, VCNA shall file annual inspection
reports for the Facility with the Illinois EPA as required
by the NPDES Permit.
4.
Pursuant to the terms ofNPDES Permit No. ILR10H169 (the "Construction Site
Stormwater Permit"), VCNA shall implement stabilization measures as soon as practicable in
areas
of the Site where construction activity has temporarily or permanently ceased as required
by the Construction Site Stormwater Permit.
5.
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 Facility which is the subject of this Stipulation, at all reasonable
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Electronic Filing - Received, Clerk's Office, October 2, 2008
, '0
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.
6.
This Stipulation in no way affects the responsibilities
of Southfield or VCNA to
comply with any other applicable federal, state
or local laws or regulations, including but not
limited to the Act and the Board Regulations.
7.
VCNA shall cease and desist from future violations ofthe Act and Board
Regulations that were the subject matter
of the Complaint.
E.
Release from Liability
In consideration of Southfield'sand VCNA's payment ofa $55,000.00 penalty, and upon
the Board'sapproval of this Stipulation, the Complainant releases, waives and discharges
Southfield and VCNA and their respective officers, directors, agents, employees and members
from any further liability
or penalties for the violations of the Act and Board Regulations that
were the subject matter
of the Complaint herein or that were observed by the Illinois EPA during
its April 25, 2008 inspection
of the Facility and that are described in Section LB, above. The
Complainant reserves, and this Stipulation is without prejudice to, all rights of the State of
Illinois against Southfield and VCNA 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
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Electronic Filing - Received, Clerk's Office, October 2, 2008
.'
..
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 orjudicial, 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 Southfield or VCNA.
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.
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Electronic Filing - Received, Clerk's Office, October 2, 2008
I
• '..
~
,
:..
.
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
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
Rh~WUE~ZW~~?==---BY:
J::J/~s~~
Chief Legal Counsel
DATE:,__1--j/L-_{1-+-0_0=---
_
PRAIRIE MATERIAL SALES, INC.,
now known as SOUTHFIELD
CORPORATION, an Illinois corporation,
DATE:
~~o:........:)(=---
_
VCNA PRAIRIE ILLINOIS BUILDING
MATERIALS, LLC, a Delaware limited
liability company
DATE:_<\_/~--=--fJ_S>
_
BY:
~~~~BY:
Name:~~ ~.
Oref¥\u'>
Title:
~«~ ~S~\
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Electronic Filing - Received, Clerk's Office, October 2, 2008
CERTIFICATE OF SERVICE
I, REBECCA
A.
BURLINGHAM, an Assistant Attorney General in this case, do certify
that I caused to be served this 2
nd
day of October, 2008, the foregoing Stipulation and Proposal
for Settlement, Motion to Request Relief From Hearing Requirement and Notice
of Filing upon
the person listed on said Notice by depositing same in an envelope, first class postage prepaid,
with the United States Postal Service at 188 West Randolph Street, Chicago, Illinois, at or before
the hour
of 5:00 p.m.
Electronic Filing - Received, Clerk's Office, October 2, 2008
