BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
ALDEN BENNETT CONSTRUCTION
COMPANY, INC., an Illinois corporation,
andBLOOMITNGDALEHO~ONI
LIMITED PARTNERSHIP, a registered
Illinois limited partnership,
PCB 09-005
(Enforcement
- Water)
PEOPLE OF THE
STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney General
of )
the State of Illinois,
)
)
)
)
)
)
)
)
)
)
)
)
)
NOTICE OF FILING
TO:
Kenneth J. Fisch
Law Offices
of Kenneth J. Fisch
4200 West Peterson Avenue
Suite 140
Chicago, Illinois 60646
(Registered
Agent-
Alden Bennett Construction Company, Inc.
and Bloomingdale Horizon I Limited Partnership)
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 are attached and
hereby served upon you.
Respectfully submitted,
DATE: October
29,2008
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:
t!LL~
ANDREW ARMSTRONG
Assistant Attorney General
Environmental Bureau
69 West Washington, 18th Floor
Chicago, Illinois 60602
(312) 814-0660
Electronic Filing - Received, Clerk's Office, October 29, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
ALDEN BENNETT CONSTRUCTION
COMPANY, INC., an Illinois corporation,
and BLOOMINGDALE HORIZON I
LIMITED PARTNERSHIP, a registered
Illinois limited partnership,
PCB 09 - 005
(Enforcement
- Water)
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney General
of )
the State
of Illinois,
)
)
)
)
)
)
)
)
)
)
)
)
)
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 ALDEN BENNETT CONSTRUCTION COMPANY, INC. and BLOOMINGDALE
HORIZON I LIMITED PARTNERSHIP ("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 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
Electronic Filing - Received, Clerk's Office, October 29, 2008
A.
Parties to the Stipulation
1.
On July 14, 2008, a Complaint was filed on behalf ofthe People ofthe 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
the Respondents.
2.
The Illinois EPA is an administrative agency ofthe 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 Bloomingdale Horizon I
Limited Partnership ("Bloomingdale Horizon I") was and is a registered Illinois limited
partnership in good standing, organized and operating under the laws
of the State of Illinois. At
all times relevant to the Complaint, Respondent Bloomingdale Horizon I owned a 5.2-acre parcel
of land located at 160 West Lake Street, Bloomingdale, DuPage County, Illinois ("Construction
Site").
4.
From March 16,2006 to August 29,2007, the Construction Site was covered by
Illinois General National Pollutant Discharge Elimination System ("NPDES") Construction Site
Permit number ILR1
OE858 ("NPDES Permit No. ILR10E858"), authorizing storm water
discharges at the Site.
5.
At all times relevant to the Complaint, Respondent Alden Bennett Construction
Company, Inc. ("Alden Bennett") was and is an Illinois corporation in good standing, organized
and operating under the laws
of the State of Illinois.
6.
From some date prior to November 1,2006 to at least May 29,2007, the precise
dates best known to
.the Respondents, Respondent Alden Bennett acted as general contractor for
2
Electronic Filing - Received, Clerk's Office, October 29, 2008
the construction ofthe Bloomingdale Horizon Senior Living Center atthe Construction Site, and
conducted construction activities at the Construction Site.
B.
Allegations of Non-Compliance
The 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
Violation of Section 12(a) of the Act, 415 ILCS 5/l2(a) (2006).
Creating a Water Pollution Hazard
Violation
of Section l2(d) ofthe Act, 415 ILCS 5/l2(d) (2006).
Failure to Comply With NPDES Permit
Violation
of Section l2(f) of the Act, 415 ILCS 5/l2(f); Section
309.102(a)
of the Board Water Pollution Regulations, 35 Ill. Adm. Code
309.102; and terms
ofNPDES Permit No. ILR10E858.
C.
Admission of Violations
The Respondents admit to the violations alleged in the Complaint filed in this matter and
referenced within Section LB, above.
D.
Compliance Activities to Date
1.
On August 29,2007, the Illinois EPA received from the Respondents a Notice of
Termination of coverage under NPDES Permit No. ILR10E858. The Notice of Termination
stated that construction activities on the Site had been completed.
II. APPLICABILTY
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
3
Electronic Filing - Received, Clerk's Office, October 29, 2008
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:
1.
the character and degree of injury to, or interference with the protection of
the health, general welfare and physical'propertyof the people;
2.
the social and economic value
of the pollution source;
3.
the suitability or unsuitability
ofthe 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:
4
Electronic Filing - Received, Clerk's Office, October 29, 2008
1.
The environment was threatened and the Illinois EPA's infonnation gathering
responsibilities hindered by the Respondents' violations.
2.
There was social and economic benefit afforded by the Construction Site.
3.
The Construction Site was suitable for the area in which it is located, so long as it
. was operated in accordance with all applicable statutory, regulatory, and pennit requirements.
4.
Compliance with all applicable statutory, regulatory, and pennit requirements for
the Construction Site was both technically practicable and economically reasonable.
5.
Construction activities at the Construction Site were completed as of August 29,
2007. The Respondents have committed to comply with the Act, Board Regulations, and all
applicable pennits issued by the Illinois EPA, with respect to the violations alleged in the
Complaint filed in this matter.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h) (2006), provides as follows:
In
detennining the appropriate civil penalty to be imposed under ... this Section,
I
the Board is authorized to consider any matters of record in mitigation or
aggravation
ofpenalty, induding 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 detennined by the lowest cost alternative for achieving compliance;
5
Electronic Filing - Received, Clerk's Office, October 29, 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 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.
From at least November 1,2006 to May 29,2007, the precise dates best known by
the Respondents, the Respondents during certain periods failed to install proper erosion control
measures at the Site, thereby causing, threatening,
or allowing soil and/or debris from
construction activities at the Site to discharge into the waters
of the State of Illinois; creating a
water pollution hazard; and violating the terms
ofNPDES Permit No: ILR10E858. From at least
March 16, 2006 to March 22, 2007, the precise dates best known
by the Respondents, the
Respondents failed to create, maintain, and make available to the Illinois EPA all
of the weekly
site inspection reports required
by NPDES Permit No. ILR10E858. From at least March 16,
2006 to May
29,2007, the precise dates best known by the Respondents, the Respondents failed
to submit to the Illinois EPA Incident
ofNoncompliance reports after violations of the Storm
Water Pollution Prevention Plan ("SWPPP") for the Construction Site had occurred, as was
6
Electronic Filing - Received, Clerk's Office, October 29, 2008
required by NPDES Permit No. ILRI0E858. On November 1, 2006, Respondents did not
provide a copy
of the SWPPP for the Construction Site to the Illinois EPA inspector who had
requested it, in violation ofNPDES Permit.No. ILRlOE858.
2.
Though the Respondents corrected some problems at the Construction Site after
the IllinoisEPA identified them, the Illinois EPA identified violations during every inspection of
the Construction Site it conducted while construction activities were ongoing.
3.
The Illinois EPA has calculated that the civil penalty agreed to in Section V.A,
below, exceeds the economic benefit to Respondents due to their noncompliance with applicable
statutory, regulatory, and permit requirements.
4.
The Complainant has 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 the Complainant's knowledge, the Respondents 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
7
Electronic Filing - Received, Clerk's Office, October 29, 2008
1.
The Respondents shall pay a civil penalty in the sum of Twelve Thousand Dollars
($12,000.00) within thirty (30) calendar days from the date the Board adopts and accepts this
Stipulation.
B.
Interest and Default
1.
If the Respondents fail to make any payment required 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
penaltie~
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
8
Electronic Filing - Received, Clerk's Office, October 29, 2008
P.O. Box 19276
Springfield, IL 62794-9276
The name, case number, and the Respondents' federal tax identification numbers 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:
Andrew Armstrong
Assistant Attorney General
Environmental Bureau
69 West Washington Street, 18th Floor
Chicago, Illinois 60602
D.
Future Compliance
1.
Effective immediately, the Respondents shall conduct all construction activities in
accordance with the Act, Board Regulations, and all applicable permits issued
by the Illinois
EPA.
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 Board Regulations.
E.
Release from Liability
In
consideration of the Respondents' payment of the $12,000.00 penalty, and upon the
Board's approval
of this Stipulation, the Complainant releases, waives, and discharges the
Respondents from any further liability
or penalties for the violations of the Act and applicable
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 the Complainant's
9
Electronic Filing - Received, Clerk's Office, October 29, 2008
Complaint filed on July 14, 2008. The Complainant reserves, and this Stipulation is without
prejudice to, all rights
ofthe 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 ofthe 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
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 Respondents.
F.
Enforcement 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
10
Electronic Filing - Received, Clerk's Office, October 29, 2008
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.
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/
Asbestos
.. tion Division
BY:
.ROS
1 ,"VI,",- ,'\.."
Enviro
al Bureau
Assistant Attorney General
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Enviro.nmental Protection Agency
BY:
~t-------;r-----tr--+ir-----=
11
Electronic Filing - Received, Clerk's Office, October 29, 2008
ALDEN BENNETT CONSTRUCTION
BLOOMINGDALE HORIZON I LIMITED
CO, INC.
PARTNERSHIP
BY:
Title: ?4
£fl//
Ci'1/r
DATE: /t'-
/1-
~e
BY:~
. Title:_LlI'Oce
P(es/d~cd:
DATE:
10-1.2---08
12
Electronic Filing - Received, Clerk's Office, October 29, 2008
-.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
v.
Respondents.
Complainant,
ALDEN BENNETT CONSTRUCTION
COMPANY, INC., an Illinois corporation,
and BLOOMINGDALE HORIZON I
LIMITED PARTNERSHIP, a registered
Illinois limited partnership,
PCB 09-005
(Enforcement - Water)
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney General
of )
the State
of Illinois,
)
)
)
)
)
).
)
)
)
)
)
)
)
MOTION TO REQUEST RELIEF
FROM HEARING REQmREMENT
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 July 21,2008, the Complaint was accepted for hearing by the Pollution
Control Board ("Board") in this matter.
On October 29, 2008, a Stipulation and Proposal
for Settlement was filed with the Board.
If
accepted, the Stipulation and Proposal for
Settlement will dispose ofthe case.
2.
Section 31(c)(2)
ofthe Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2008), allows the parties in certain enforcement cases to request relief
from the mandatory hearing requirement
wher~
the parties have submitted to the Board a
stipulation and proposal for settlement. Section 31(c)(2) provides:
!
I
l
Electronic Filing - Received, Clerk's Office, October 29, 2008
)
CERTIFICATE OF SERVICE
I, ANDREW ARMSTRONG, an Assistant Attorney General, do certify that I
caused to be mailed this 29th day
of October, 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.
ANDREW ARMSTRONG
Assistant Attorney General
Environmental Bureau
69 West Washington, 18th Floor
Chicago, IL 60602
(312) 814-0660
Electronic Filing - Received, Clerk's Office, October 29, 2008
