BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CENTERPOINT PROPERTIES TRUST, a
real estate investment
trust, and FCL
INVESTORS, INC., an Illinois corporation
formerly known as
FCL BUILDERS, INC.,
Respondent,
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PCB No. 09-2
(Enforcement -
Water)
NOTICE OF FILING
TO:
Bryan E. Keyt
Bryan Cave LLP
161 North Clark Street, Suite 4300
Chicago, IL 60601
(VIA ELECTRONIC FILING)
PLEASE
TAKE NOTICE that on the 14
h
day ofNovember, 2008, I filed with the Clerk of
the Illinois Pollution Control Board a Motion to Request ReliefFrom Hearing Requirement and a
Stipulation and Proposal for Settlement with CenterPoint Properties Trust and
FCL Investors,
Inc., 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 I : ois
RICHARDA.
RRY
Assistant Attorney General
Environmental Bureau
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
(312) 814-2069
Date: November 14, 2008
Electronic Filing - Received, Clerk's Office, November 14, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CENTERPOINT PROPERTIES TRUST, a
real estate investment
trust, and FCL
INVESTORS, INC., an Illinois corporation
formerly known as
FCL BUILDERS, INC.,
Respondent,
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PCB No. 09-2
(Enforcement -
Water)
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 July 3,2008, a Complaint was filed with the Pollution Control Board
("Board") in this matter.
On November 14, 2008, a Stipulation and Proposal for Settlement with
CenterPoint Properties Trust and
FCL Investors, Inc. 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 ofthe 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 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 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 November 14,2008.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2069
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CENTERPOINT PROPERTIES TRUST, a
real estate investment
trust, and FCL
INVESTORS, INC., an Illinois corporation
formerly known as
FCL BUILDERS, INC.,
Respondent,
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)
)
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PCB No. 09-2
(Enforcement -
Water)
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH CENTERPOINT
PROPERTIES TRUST AND FCL INVESTORS, 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 the Respondents, CENTERPOINT PROPERTIES TRUST, a real estate investment trust
("CenterPoint"), and FCL INVESTORS, INC. ("FCL"), an Illinois corporation formerly known
as FCL BUILDERS, INC., (CenterPoint and FCL together "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'sapproval of
this Stipulation and issuance of relief. None ofthe 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 adjudication
of this matter.
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
L
On July 3,2008, a Complaint was filed on behalf ofthe 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
~LCS
5/31 (2006), against
the Respondents.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4
ofthe Act, 415 ILCS 5/4 (2006).
3.
At all times relevant to this Complaint, Respondent CenterPoint was and is a real
estate investment trust.
4.
At all times relevant to this Complaint, Respondent FCL was known as FCL
Builders, Inc., and was and is an Illinois corporation in good standing with the State
of Illinois.
5.
At all times relevant to this Complaint, CenterPoint owned those portions of the
"Center Point Business Center," a parcel
of land located at approximately the northwest comer
of the intersection of Interstate 94 and Washington Street in the Village of Gurnee in Lake
County, Illinois (the "Site"), where construction activities were taking place between April
3,
2006 and May 12,2006.
6.
CenterPoint engaged in construction activities at the Site and hired Respondent
FCL as its construction contractor. CenterPoint contracted with FCL to perform and oversee
construction and grading activities at the Site. Complainant alleges that in the process
of
conducting grading activities, FCL caused soil and sediment to be excavated and disturbed at
certain sections
ofthe Site. Complainant further alleges that between April 3, 2006 and May 12,
2006, on dates better known to the Respondents, the disturbed soil and sediment at the Site was
carried by storm water into an unnamed tributary of the Des Plaines River and into an area of
wetlands that is located near the southeast comer of the Site.
B.
Allegations of Non-Compliance
Complainant and the Illinois EPA allege that the Respondents have violated the following
provisions
of the Act and Board regulations:
Count
I:
Count II
Count III:
Count IV:
Count
V:
Count VI:
Count VII:
Count VIII:
Causing, threatening or allowing water pollution, in violation
of Section
12(a)
of the Act, 415 ILCS 5/12(a) (2006).
Causing, threatening or allowing a violation
of water quality standards, in
violation
of Section 12(a) of the Act, 415 ILCS 5/12(a) (2006), and
Section 302.203
of the Board Water Pollution Regulations, 35 Ill. Adm.
Code 302.203.
Creating a water pollution hazard, in violation
of Section 12(d) of the
Act, 415 ILCS 5/12(d) (2006).
Failure to sign a stormwater pollution prevention plan in violation
of the
terms
ofa NPDES storm water permit, 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).
Failure to stabilize a construction site in violation
of the terms ofa
NPDES stormwater permit, Section 12(f) of the Act, 415 ILCS 5/12(f)
(2006), and Section 309.102(a)
ofthe Board'sWater Pollution
Regulations, 35 Ill. Adm. Code 309.102(a).
Failure to carry out required inspections and file noncompliance reports
in violation
of the terms ofa NPDES stormwater permit, Section 12(f) of
the Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a) of the Board's
Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
Failure to obtain contractor certifications in violation
of the terms of a
NPDES stormwater permit, 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).
Discharging in violation
of a water quality standard, Section 12(f) of the
Act, 415 ILCS 5/12(f) (2006), and Section 309.102(a)
ofthe Board's
Water Pollution Regulations, 35 Ill. Adm. Code 309.102(a).
C.
Non-Admission of Violations
Respondents neither admit nor deny the violations alleged in the Complaint filed in this
matter and referenced within Section ilLB herein.
D.
Compliance Activities to Date
The portions of the Site relevant to the Complaint were fully stabilized and the alleged
violations ceased
by September 20, 2007.
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 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) ofthe 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 ofthe 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 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:
1.
The alleged violations potentially threatened human health and the environment
by discharging contaminants into the waters
of the State.
2.
The Respondents' construction activities had a social and economic benefit.
3.
The Site was suitable for the area in which it is located.
4.
It
is both technically practicable and economically reasonable to implement
adequate erosion control measures at the Site in compliance with the Act and Board regulations.
5.
The Respondents have subsequently complied with the Act and the Board
Regulations and addressed each
of the alleged violations.
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 ofthe 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 detennined 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 perfonn.
In response to these factors, the parties to this Stipulation state as follows:
1.
Complainant has alleged that violations continued at the Site from at least April 3,
200~
until at least May 12, 2006.
2.
The Respondents were diligent in responding to the alleged violations and
complying with the Act, and Board regulations, once the Illinois EPA notified it
of its alleged
noncompliance.
3.
The penalty obtained exceeds any economic benefit realized by the Respondents
as a result of the alleged noncompliance.
4.
Complainant and the Illinois EPA have detennined, based upon the specific facts
of this matter, that a combined penalty of Twenty Thousand Dollars ($20,000.00) to be paid per
the tenns
of Section V will serve to deter further violations and aid in future voluntary
compliance with the Act and Board regulations.
5.
To Complainant'sknowledge, neither Respondent has had any prior enforcement
action brought against them
under 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
The Respondents shall pay a civil penalty totaling Twenty Thousand Dollars ($20,000)
within thirty (30) days from the date the Board adopts and accepts this Stipulation.
B.
Stipulated Penalties, 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, 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) ofthe Act, interest shall accrue on any penalty amount
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
th,~t
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 a Respondent's 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:
Richard
A.
Perry
Assistant Attorney General
Environmental Bureau
69 W. Washington St., 18
th
Floor
Chicago, Illinois 60602
D.
Future Compliance
1.
In addition to any other authorities, 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 Site 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 ofthe Respondents to
comply with any other federal, state or local laws or
re~lations,
including but not limited to the
Act and the Board Regulations.
3.
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 Respondents' payment ofa $20,000.00 penalty and commitment to
cease and desist as contained in Section V.D.3, and upon the Board's approval of this
Stipulation, the Complainant releases, waives and discharges both 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'sComplaint filed on July 3,2008, 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
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
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'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.
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:
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ROSEMARIE CAZEAU,
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ROBERT
A.
MES~
Environmental Bureau
Chief Legal Counsel
Assistant Attorney General
DATE:
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CENTERPOINT PROPERTIES TRUST
BY:
Name:
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Title:
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FCL INVESTORS, INC.
BY:
Name:
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Title:
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DATE:
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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:
-------------
CENTERPOINT PROPERTIES TRUST
FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY:
--------------
ROBERT A. MESSINA
Chief Legal Counsel
DATE:
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CERTIFICATE OF SERVICE
I, RICHARD A. PERRY, an Assistant Attorney General in this case, do certify that I
caused to be served this 14th day
ofNovember, 2008, the foregoing Motion to Request Relief
From Hearing Requirement, Stipulation and Proposal for Settlement with CenterPoint Properties
Trust and FCL Investors, Inc., and Notice
of Filing upon the persons listed on said Notice by
depositing same in an envelope, first class postage prepaid, with the United States Postal Service
at 69 West Washington Street, Chicago, Illinois, at or before the hour
of 5:00 p.m.
