JAN
072009
RATE
OFILL,S
OFFICE
OF
THE ATTORNEY
GENERAL
STATE
OF ILLINOIS
Lisa Madigan
X1’l’ORNEY
GENERAL
January
5, 2009
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.
Kaplan Development
& Investment
Company
PCB No. 09-29
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.
Very
truly yours,
Janasie
Environmental
Bureau
500 South
Second Street
Springfield,
Illinois
62706
(217)
782-9031
SJJ/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
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEÔPLEOF
THE
STATE
OF
ILLINOIS,
)
Complainant,
v.
)
PCB
No.
09-29
)
(Enforcement)
KAPLAN
DEVELOPMENT
AND
INVESTMENT
COMPANY,
Respondents.
NOTICE
OF FILING
To:
Brad
Goss
o
1475
Fairgrounds
Road,
Ste.
102
GOfl
St.
Charles,
MO
63301
PLEASE
TAKE
NOTICE
that
on
this
date
I
mailed
for filing
with
the Clerk
of the
Pollution
Control
Board
of the
State
of Illinois,
a
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
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Divsio
A
BY:___
st
YJANASIE
Assist’ant
Attorney
General
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
January
5,
2009
CERTIFICATE OF SERVICE
I hereby
certify
that I did on January
5, 2009,
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:
Brad
Goss
1475
Fairgrounds
Road, Ste: 102
St.
Charles, MO
63301
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.
)
PCB No. 09-29
)
(Enforcement)
INVESTMENT
KAPLAN DEVELOPMENTCOMPANY,
AND
)
)
OFFIOE
WED
Respondents.
)
JAN
072009
STATE
OF
ILLiNOIS
MOTION FOR RELIEF
FROM
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
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
MATTHEWJ. DUNN,
Chief
Environmental Enforcement/Asbestos
BY:
STJ
AANAS
I
E
Environmental Bureau
Assistant Attorney General
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
August 19,
2008
2
BEFORE THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF THE
STATE OF
ILLINOIS,
)
Complainant,
v.
)
PCB NO.
09-29
KAPLAN
DEVELOPMENTAND
)
INVESTMENT COMPANY,
)
JAN
072009
Respondent.
STATE
OF
ILLINOIS
c’ollutr,
Contr
I
Board
STIPULATION
AND PROPOSAL FOR
SETTLEM NT
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
KAPLAN DEVELOPMENT AND INVESTMENT COMPANY (“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.
I. STATEMENTOF FACTS
A.
Parties to the Stipulation
1.
On October 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
Respondent.
2.
The
Ilhnois
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 a
Missouri
corporation
that
is authorized
to transact
business
in
the
State
of
Illinois.
4.
At
all times
relevant
to
the
Complaint,
Respondent
was
the
operator
of
the
Summit
Springs
lift
station
(“lift
station”),
serving
the
Village
of
Caseyville,
St.
Clair
County,
Illinois.
The
lift
station
is
used
to collect
untreated
sewage
and
move
that
wastewater
through
the
village’s
wastewater
treatment
system.
5.
At
all
times
relevant
to
the Complaint,
Respondent
was
the
permittee
for the
purposes
of
Illinois
EPA
Water
Pollution
Control
Permit
No.
2003-IA-4132,
as
the lift
station
was
operated
off a
temporary
power
source
(“generator”),
and
as
such
was
under
the
construction
phase
of
the
permit.
6.
On
or
about
July
1,
2005,
a wastewater
overflow
of
untreated
sewage
occurred
at
the
lift
station
as a
result
of failure
of
the
generator
battery.
7.
On
or
about
October
17,
2005,
a
second
wastewater
overflow
of
untreated
sewage
occurred
at
the
lift
station
as
a result
of
failure
of
the
generator
battery.
8.
On
or
about
October
21,
2005,
a
third
wastewater
overflow of
untreated
sewage
occurred
at the
lift
station
as
a
result
of
the failure
of
the
generator
battery.
9.
On
or
about
December 14, 2005,
a
fourth
wastewater
overflow
of
untreated
sewage
occurred
at the
lift
station.
10.
On
or
about
December 14,
2005,
Illinois
EPA
inspectors
arrived
at
the
lift
station
and
observed
that
the
wet welt
was
overflowing into
a nearby
intermittent
stream
at
an
estimated
rate
of
two
gallons
per
minute.
The
cause
of
the
overflow
was
determined
to
be
generator
malfunction.
2
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:
Section
12(a)
and
(f)
of
the
Act,
415
ILCS
5/12(a)
and
(f)
(2006),
Sections
302.203,
304.106,
and
306.304
of the
Board’s
Regulations,
35111.
Adm.
Code
302.203,
304.106, and
306.304.
Complainant
and
the
Illinois
EPA
contend
that
Respondent’s
operations
of
the
lift
station
caused
four
separate
wastewater
overflows
that
caused,
threatened,
or
allowed
the
discharge
of
untreated
sewage
into
the
environment.
Complainant
and
the
Illinois
EPA
contend
that
the
Respondent’s
fourth
overfiow
discharged
sewage
into
a nearby
intermittent
stream,
leaving
deposits of
unnatural
origin
in
that
intermittent
stream.
Count
II:
Section
12(b)
of
the
Act,
415
ILCS
5/12(b)
(2006),
Section
306.102(a)
of
the
Board’s
Regulations,
35111.
Adm.
Code
306.102(a).
Complainant
and
the
Illinois
EPA
contend that
Respondent
operated
the
lift
station
without
the
required
safeguards
to ensure
system
reliability,
including the
required
backup
systems in
the
event
of
a
power
or
equipment
failure,
in
violation
of
the
terms
of
Respondent’s
Water
Pollution
Control
Permit and
the
Board’s
Water
Pollution
Regulations.
C.
Non-Admission
of
Violations
The
Respondent
represents
that
it
has
entered
into
this
Stipulation
for
the
purpose
of
settling
and
compromising
disputed
claims
without
having to
incur
the
expense
of
contested
litigation.
By
entering
into
this
Stipulation
and
complying
with
its
terms,
the
Respondent
does
not
affirmatively
admit
the
allegations
of
violation within
the
Complaint
and
referenced
within
Section
l.B
herein,
and
this
Stipulation
shall
not
be
interpreted
as
including
such
admission.
0,
Compliance
Activities
to
Date
In
March
2006,
Respondent
connected
the
lift
station to
a
permanent
power
source and
completed
the
lift station’s
construction
phase.
As
a result,
Respondent
is
no
longer
the
3
operator
of the
lift station
or the
permittee.
The
Village of
Caseyville
is
the current
owner
of
the
lift station
as
well as the owner
at
all
times
relevant to the
Complaint.
Following the conclusion
of
the
construction
phase,
the
Village
of
Caseyville
became the
lift
station’s
operator
and the
sole
permittee.
Respondent
has completed
all required
compliance
activities.
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
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-COMPIJANCE
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
4
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.
Complainant and the Illinois EPA contend that the
lift station’s four overflows of
untreated sewage constituted
a
serious threat to human health and the environment.
2.
There is social and economic benefit to the lift station,
which provides a critical
service to 49 single family dwellings
as well
as future development in the area.
3.
The
lift
station’s location in a housing
development
is
necessary.
4.
The lift station’s connection to a reliable power source prior to
its use was 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 achieving
compliance;
5
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.
Complainant and
the
Illinois EPA contend
that the
Respondent failed to
connect
the
lift
station
to a
reliable
power
source,
resulting in four overflows
of
untreated
sewage. The
first
overflow
occurred
on
or around July 1, 2005
and the
last
occurred on or
around December
14,
2005.
Respondent
connected
the lift station to
a
permanent power
supply
in
March 2006.
2.
Due to
construction delays caused
by the
local utility’s
inability
to
timely connect
the
lift
station to a
permanent
power
source, the Respondent
was
unable
to come back
into
compliance
with
the
Act, Board
regulations and
applicable federal
regulations
until
approximately
eight
months
after the first overflow.
3.
There
would
be only
nominal economic benefit
resulting
from
the failure
to
provide
an
alternate
power source
while the lift station’s
generator was down.
4.
Complainant
and
the
Illinois
EPA have determined,
based upon the
specific facts
of
this
matter, that
a penalty of Five
Thousand Dollars ($5,000.00)
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
6
previously
adjudicated
violations
of
the
Act.
6.
The
overflows
were
promptly
reported.
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
Five
Thousand
Dollars
($5,000.00)
within
thirty
(30)
days
from
the
date
the
Board
adopts
and
accepts
this
Stipulation.
B.
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.
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:
7
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
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
In
consideration
of
the
Respondent’s
payment
of
the
$5,000.00
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
referenced
herein.
The
release
set
8
forth
above
does
not
extend
to
any
matters
other
than
those
expressly
specified
in
Complainant’s
Complaint
filed
in
conjunction
with
this
Stipulation.
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;
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.
9
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,
FOR
THE
ILLINO1S
ENVIRONMENTAL
PROTECTION
AGENCY
LISA
MADIGAN
Attorney
General
State
of
Illinois
DOUGLAS
P.
SCOTT,
Director
Illinois
Environmental
ProtectionAgency
MATTHEW
J.
DUNN,
Chief
Environmental
Enforcement!
Asbestos
Litigation
Division
______
BY:______
BY:
______________________
ROBERT
.
MESSINA
THOMAS
DAVIS,
Chief
Chief
Legal
Counsel
Environmental
Bureau
Assistant
Attorney
General
DATE:
l
DATE:
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KAPLAN
DEVELOPMENT
AND
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COMPANY
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BY:
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DATE:
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Name:
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Title:
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10
