BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
, )
)
Complainant,
)
PCB No.
)
v.
)
(Enforcement- NPDES)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
NOTICE OF ELECTRONIC FILING
TO:
LeeAnn Crowe
James
J. Roche
&
Associates
642 N. Dearborn
St.
Chicago,IL
60610-4785
PLEASE TAKE NOTICE that today, April 3, 2009, I have filed with the Office of the
Clerk
of the Illinois Pollution Control Board by electronic filing the following Motion to Request
Relief from Hearing Requirement and Stipulation and
Proposal for Settlement a true and correct
copy
of which is attached and hereby served upon you.
Date: April 3,
2009
PEOPLE
OF THE STATE OF ILLINOIS,
by LISA MADIGAN,
Attorney General
of the State of Illinois
BY,
N11~I~5¥
Assistant Attorney General
Environmental Bureau
69 W. Washington
St., Suite 1800
Chicago, Illinois 60602
(312) 814-8567
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and
DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
)
)
Respondents.
)
PCB No. 08 - 045
(Enforcement- NPDES)
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 February 13,2008, Complaint number PCB 08-045 was filed with the
Illinois
Pollution Control Board ("Board") in this matter.
2.
On March 25,2009, a Stipulation and Proposal for Settlement was filed
with the Board.
3.
Section
31 (c)(2) of the Illinois Environmental Protection Act ("Act"), 415
ILCS 5/31 (c)(2) (2006), 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.
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
4.
Section 31(c)(2) of the Act, 415 5/31 (c)(2) (2006), provides as follows:
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 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).
5.
No hearing is currently scheduled in the instant case.
6.
The Complainant requests the relief conferred py Section 31 (c) (2) of the
Act, 415 ILCS 5/31 (c)(2)
(2006).
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
NANCY}.
BY.
~~~
KA K
Assistant Attorney General
Environmental Bureau
North
69 West Washington St., Suite 1800
Chicago, Illinois 60602
312-814-8567
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
)
Complainant,
)
)
v.
)
)
DISTINCTIVE HOMES, LTD., an Illinois limited )
liability corporation, and DISTINCTIVE
)
COMPANIES, LTD., an Illinois
)
limited liability corporation,
) .
)
Respondents.
)
PCB No. 08,045
(Enforcemenf: NPDES)
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 DISTINCTIVE HOMES, LTD., an Illinois limited liability
corporation, and DISTINCTIVE
COMPANIES, LTD., an Illinois limited liability
corporation
("Respondents") ("Parties to the Stipulation"), 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 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
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Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
intent of the Parties the Stipulation and Proposal for Settlement that it be a final
adjudication of this matter.
I.
STATEMENT OF FACTS
A.
Parties
1.
On February 13, 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 42 of the Act, 415
ILCS 5/42
(2006) against the Respondents ("Complaint").
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, Respondents, Distinctive Homes,
Ltd. and Distinctive Companies, Ltd. (collectively
"Distinctive") have been and are
Illinois limited liability corporations that are authorized to transact business in the State
of Illinois. Respondents owned Villas of Fountain Hills, a 38 acre residential development
with
77 residential lots located at Wolf Road, one block south of 179
th
Street, in the
Village of
Orland Park, Cook County, Illinois ("Site").
B.
Allegations of
Non~Compliance
Complainant contends that the Respondents have violated the following
provisions of the
Act and Board Water Pollution Regulations as follows:
Count I:
FAILURE TO OBTAIN A CONSTRUCTION PERMIT
Section 12 (b) of the Act, 415 ILCS 5/12 (b) (2006), and Section
309.202 (a) of the Board Water Pollution Regulations, 35 Ill. Adm.
Code
309.202 (a).
2
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
Count II:
FAILURE TO OBTAIN A NPDES GENERAL STORM
WATER PERMIT
Section 12(f) of the Act, 415 ILCS 12(f) (2006), and Section
309.102
(a) of the Board Water Pollution Regulations, 35 Ill. Adm.
Code
309. 102 (a)
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 I.B herein, and this Stipulation shall not be
interpreted
as including such admission.
D.
Compliance Activities to Date
After the Illinois EPA informed them of the violations, Respondents submitted
the necessary permit applications.
On March 2, 2007, the Illinois EPA issued
Respondents an
"as,built" construction permit for the sanitary sewer lines ("Sewer
Permit")
at the Site. In February 2007, Illinois EPA issued Respondents coverage under
the National
Pollutant Discharge Elimination System general storm water permit
("NPDES Permit") for the Site.
II.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Parties to the Stipulation,
and any officer, director, agent, or employee of the Respondents,
as well as any successors
or assigns
of Respondents. Respondents shall not raise as a defense
to
any enforcement
action taken pursuant to this Stipulation the failure of any of their officers, directors,
3
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
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
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.
IMP ACT 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;
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 the Stipulation state the following:
1.
Human health and the environment were threatened and the Illinois
EPA's information gathering responsibilities hindered by the Respondents' failure to
obtain coverage under the general
NPDES stormwater permit prior to initiating
construction activities at the Site.
4
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
2.
The Site has social and economic value.
3.
Respondents' construction activities at the
Site were suitable for the area
in which they occurred.
4.
Obtaining the requisite Sewer Permit and NPDES Permit, in compliance
with the
Act and Board Public Water Supply Regulations, was both technically
practicable and economically reasonable.
5.
Respondents have subsequently complied with the
Act and with Board
regulations.
IV.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42 (h) dfthe 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
5
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
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 the Stipulation state as follows:
1.
The Site is a 38-acre residential development involving the clearing of
areas of land
of all vegetation and creating piles of soil. Respondents constructed sanitary
sewers at the
Site in October 2001 but failed to obtain a permit for construction until
March
2, 2007 at which time an "as built" Sewer Permit was issued by the Illinois EPA.
This constituted approximately five years and five months of non-compliance.
In
August 2004, Respondents terminated coverage under their NPDES Permit,
leaving the Site lacking coverage under the NPDES permit from August 2004 through
February
2007 while construction continued at the Site. This constiwted approximately
two years and
six months of non-compliance.
2:
Respondent was diligent in attempting to come back into compliance with
the Act, Board regulations and applicable federal regulations, once the Illinois
EPA
notified it of its noncompliance.
3.
By failing to obtain coverage under the general NPDES storm water
permit, Respondents avoided the costs of a
$500.00 annual permit fee for the fiscal years
2004-2005 and 2005-2006. Illinois EPA has calculated that the economic benefit
Respondents gained
by not timely obtaining as construction permit for the Site was
$1,822.00. The penalty of $ 10,000.00 exceeds any economic benefit derived by
Respondents.
6
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
4.
Complainant has determined, based upon the specific facts of this matter
that a penalty of Ten Thousand dollars ($10,000.00) will serve to deter further violations
and enhance future voluntary compliance with the
Act and Board Regulations.
5.
To Complainant's knowledge, Respondents have no known previously
adjudicated violations of the Act.
6.
Respondents did not voluntarily disclose the violations that are the subject
matter of the Complaint.
7.
The settlement of this matter does not include a supplemental
environmental project.
V.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondents shall jointly and severally pay a civil penalty 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 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) of the Act, interest shall accrue on any penalty
amount owed
by 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
7
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
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
P.O. Box 19276
Springfield,
IL 62794-9276
The name, case number and 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:
Nancy
J. Tikalsky, AAG
Environmental Bureau
Illinois Attorney General's
Office
69.West Washington St., Suite 1800
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 Respondents'
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
8
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
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 Respondents to
comply with any other federal, state or local laws or regulations, including
but not limited
to the
Act and the Board Regulations.
3.
The Respondent 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 of the Ten Thousand dollars
($10,000.00) penalty, its commitment to cease and desist as contained in V.D. above,
completion
of all activities required hereunder, and upon the Board's approval of this
Stipulation, the Complainant releases, waives and discharges 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. The
Complainant reserves and this Stipulation is without prejudice to, all rights of the State of
Illinois against 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;
9
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
c.
liability for natural resources damage arising out of the alleged violations;
and
d.
liability or claims based on 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 may have against any person, as
defined by Section 3.315 of the Act, 415 ILCS
5/3.315,
or entity other than Respondents.
F.
Enforcement
of Stipulation
Upon the entry of the Board's Order approving and accepting this Stipulation, the
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 the Parties to the 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 the Stipulation request that the Board adopt and
accept the foregoing Stipulation and
Proposal for Settlement as written.
10
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State
of Illinois
MATTHEW
J. DUNN, Chief
Environmental
Enforcement/
Asb~
s itigation Division
I
BY:
FOR THE RESPONDENT:
DISTINCTIVE
HOMES, LTD.
BY:
Name: ______________________ __
Title:
______________________ _
DATE:
____________________ _
11
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
ROBER A. MESSINA
Chief Legal Counsel
DATE:
_---=~41__...:.q+I-=-()-S.L....------
FOR THE RESPONDENT:
DISTINCTIVE COMPANIES, LTD.
BY:
Name: ______________________ __
Title:
______________________ _
DATE:
______________________ __
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
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 RESPONDENT:
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY: __
~~~
__
-=~
________ __
ROBERT A. MESSINA
Chief Legal Counsel
DATE: ______________________ _
FOR THE RESPONDENT:
BY:
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Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
v.
DISTINCTIVE HOMES, LTD., an Illinois limited
liability corporation, and
DISTINCTIVE
COMPANIES,
LTD., an Illinois
limited liability corporation,
Respondents.
PCB No. 08,045
(Enforcement, NPDES)
CERTIFICATE OF SERVICE
I, Nancy J. Tikalsky, an Assistant Attorney General, do certify that a true and correct
copy
of the Stipulation and Proposal for Settlement, Motion to Request Relief from Hearing
Requirement, and Notice of Filing were sent
by certified mail with return receipt requested to the
persons listed on the Notice of Filing
on April 3, 2009.
BY:
NANCY J. TIKALSKY
Electronic Filing - Received, Clerk's Office, April 3, 2009
* * * * * PCB 2008-045 * * * * *
