©EVE
LRI<’
OFFICE
I
iPR
32009
$IArE
OF
LUNOIS
nUution
Control
Board
OFFICE
OF
THE
A11’ORNEY
GENERAL
STATE
OF
ILLINOIS
Lisa
Madigan
.VriORNEY
GENKRAL
April
7,
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. Lewis
Development,
LLC
PCB
No.
09-20
Dear
Clerk:
Enclosed
for
filing
please
find
the original
and
ten
copies
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.
nasie
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
SJJ/pj
k
Enclosures
500
South
Second
Street,
Springfield,
Illinois
62706
•
(217)
782-1090
•
TTY:
(877)
844-5461
•
Fax: (217)
782-7046
100 West
Randolph
Sireet,
Chicago,
Illinois
60601
•
(312)
814-3000
TTY:
(800)
964-3013
e
Fax: (312)
814-3806
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE OF ILLINOIS,
)
Complainant,
vs.
)
PCB
No, 09-20
)
(Water - Enforcement)
LEWIS DEVELOPMENT, LLC
)
an Illinois limited liability
corporation,
)
Respondents.
)
DR
NOTICE OF FILING
F
To:
Richard A. Russo
Davis & Campbell, L.L.C.
401 Main Street, Ste. 1600
Peoria, IL 61602
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
Enforce
nt/Asbestos
LW,gat7io
P’NA.JANAS1E
Assis ant Attorney General
Environmental Bureau
500
South Second
Street
Springfield, Illinois
62706
217/782-9031
Dated:
April 7, 2009
CERTIFICATE
OF
SERVICE
I hereby
certify
that I
did
on April
7,
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:
Richard
A. Russo
Davis
&
Campbell,
L.L.C.
401
Main
Street,
Ste
1600
Peoria,
IL 61602
and
the
original
and
ten
copies
by
First
Class
Mail
with
postage
thereon
fully prepaid
of the
same
foregoing instrument(s)
To:
John
T.
Therriault,
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
Assi
ey
General
This
filing
is
submitted
on
recycled
paper.
BEFORE THE ILUNOIS POLLUTION
CONTROL BOARD
PEOPLE
OF THE STATE OF ILUNOIS,
Complainant,
vs.
)
PCB No. 09-20
)
(Water - Enforcement)
an
LEWIS
Illinois
DEVELOPMENT,
limited liability
LLC
corporation,
))
VED
Respondents.
)
APR
1
32009
STATE
OF
LLINOIS
MOTION FOR RELIEF
FROM
HEARING
REQ
19
otr0I
Board
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
MADI
CAN
ATTORNEY
GENERAL
MATTHEW
J.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigatio
Di
0
BY:_______________________
En
iro
mental
Bureau
Assistant
Attorney
General
500
South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
April
7,
2009
2
BEFORE THE
ILLINOIS
POLLUTION CONTROL BOARD
PEOPLE OF
THE
STATE OF
ILLINOIS,
Complainant,
v.
)
PCB No. 09-20
(Water-Enforcment)
LEWIS
DEVELOPMENT,
LLC
)
an
Illinois
limited
liability
corporation,
)
OFFICE
APR132
009
Respondent.
STATE
o
sutton
OF
Control
ILLINOIS
Board
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
LEWIS
DEVELOPMENT,
LLC
(‘Respondent”)
(“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 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/let seq. (2006), and the
Board’s
Regulations, alleged in the
Complaint except
as otherwise provided
herein
in
Section
II. 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
1.
On September
30,
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 Iflinois EPA,
pursuant to Section 31 of
the
Act,
415 ILCS 5/31 (2006),
against
the Respondent.
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,
the Respondent was and is an Illinois
limited liability company registered
and
in
good standing with the Illinois Secretary
of State’s
Office.
4.
At
all
times relevant
to the Comp!aint, the Respondent was
the
owner/developer
of Village
Grande Ancient Oaks (‘Site”),
a
housing development
located at the end .of Ancient
Oaks Drive on the
northwest side of Peoria, Illinois The Respondent was engaged in the
construction of homes at the
Site.
5.
Complainant contends that on or about June 14, 2002, an Illinois EPA inspector
inspected the
Site and observed that the Site’s inadequate
erosion
control measures had
caused an
erosion problem at the
Site.
The
Respondent’s inadequate erosion control
measures had
aliowed sediment to deposit in
a
pond adjacent to the Site (“Pond”).
6.
Complainant contends that on or about April
13, 2004,
the
Illinois EPA inspector
returned to
the Site
and observed that the Respondent had not maintained erosion control
measures at
the Site and that the
Respondent’s inadequate erosion control measures
had
continued to
allow sediment to
deposit in the Pond.
7.
Complainant contends that on or about June 4, 2004, the
Illinois
EPA
inspector
returned to the
Site and observed
that the Respondent
had
not maintained erosion control
measures at the
Site and that the
Respondent’s
inadequate erosion control measures had
continued
to
allow sediment to deposit in the Pond.
2
B.
ANegations
of Non-Compliance
Complainant
contends that the
Respondent has violated
the following
provisions of
the
Act
and Board regulations:
Count
I:
Section
12(a) of the Act, 415
ILCS 5/12(a) (2006),
Section
309.102(a)
of the
Board’s
Water
Pollution
Regulations,
35 III.
Adm.
Code 309.102(a).
The Respondent failed
to maintain adequate
erosion control
measures
at the Site and
deposited silt and sediment
from the
Site into
the Pond, causing water
pollution in waters
of the
State.
Count II:
Section 12(f)
of the Act, 415 1LCS
5/12(f) (2006).
The Respondent
caused or
allowed
or
threatened
the discharge
of
contaminants
into waters of the State
without a NPDES
permit.
C.
Non-Admission
of Viobtions
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
D.
Compliance
Activities
to Date
The Respondent
has
submitted
the
necessary
paperwork
to the Illinois
EPA to acquire
an
Illinois
General
Construction
NPDES
Permit
for the Site. The
Respondent has
also installed
silt
fences,
provided
necessary
protections
around the Site’s storm
sewer inlets,
and submitted
the
requisite
inspection
reports.
At
this
time, the
Illinois EPA is satisfied
that the Respondent
is
currently
in compliance
with the
Act and Board
regulations.
3
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 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-COMPLIANCE
Section 33(c)
of the Act, 415 ILCS
5133(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.
Complainant
contends that the
Respondent discharged silt and
sediment into
an
adjacent
pond
without a NPDES
permit causing water
pollution
that
threatened human health
4
and
the
environment.
2.
There is social
and economic
benefit
to
a
housing
development.
3.
The
construction
of a housing
development
was
suitable
for
the
area in
which it
was
located.
4.
Obtaining
a
permit
prior
to construction
at the
Site, compliance
with
its terms,
and
the
application
of proper
erosion
controls
was
both technically
practicable
and
economically
reasonable.
5.
The Respondent
is currently
in
compliance
with the Act
and the
Board
Regulations.
IV. CONSIDERATION
OF SECTION
42(h)
FACTORS
Section 42(h)
of
the
Act,
415
ILCS 5142(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
of
this
Section, the
non-compliance
to
the
Agency;
and
7.
whether
the respondent
has
agreed
to undertake
a
“supplemental
5
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.
Complainant
contends
that
the
Respondent failed
to have a general NPDES
stormwater permit during a
portion of
the
construction activities
at the Site, and failed to
implement proper erosion
control measures
at
the
Site,
causing water pollution.
The alleged
violations began
on or around June 14, 2002, and
additional
alleged violations were
observed
on subsequent
inspections. The alleged
violations were individually resolved
at
various
times
over the
course of a six-year
period.
2.
Complainant
contends that the Respondent was not
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.
Complainant
contends that the
Respondent delayed the costs of
implementing
erosion
control measures and
acquiring an Illinois General Construction NPDES
Permit at
the Site and
that the
Respondent gained economic benefit from these delays.
4.
Complainant
has determined, based upon
the specific facts of this matter,
that
a
penalty
of Seven
Thousand
Five Hundred dollars ($7,500.00) will serve to deter future violations
and aid
in voluntary
compliance with the
Act and Board regulations.
5.
To
Complainant’s knowledge, the
Respondent has no previously adjudicated
violations of
the Act.
6.
The Respondent
did not voluntarily
disclose the alleged violations involved
in this
case,
but
was cooperative
in
reaching
an
amicable resolution with Complainant.
7.
The
settlement of this matter does not
include a supplemental environmental
6
project.
V. TERMS
OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent
shall
pay a
civil
penalty in the
sum
of Seven
Thousand
Five
Hundred
Dollars
($7,500.00)
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:
Illinois
Environmental
Protection
Agency
Fiscal Services
1021 North
Grand
Avenue
East
P.O. Box
19276
Springfield,
IL
62794-9276
7
The
name,
case
number
and
the
Respondent’s
federal
tax
identification
numbershall 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.
3.
The
Respondent
shall
cease
and
desist
from future
violations
of
the
Act and
Board
Regulations
that
were
the
subject
matter
of
the Complaint.
8
E.
Release
from
Liability
In consideration
of
the Respondent’s
payment of
the
$7,500.00
penalty, its
commitment
to
Cease
and Desist as
contained in Section
V.D.3 above, 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
herein. The release
set
forth above
does not extend to any
matters
other than those
expressly
specified in Complainant’s
Complaint
filed
on
September
30,
2008.
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.
9
G.
Execution
of Stipu’ation
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.
10
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
MATTHEWJ.
DUNN, Chief
Environmental Enforcement!
Asbestos
Litigation Division
BY:
THOMAS DAVIS, Chief
Environmental
Bureau
Assistant Attorney
General
DATE:
4/°)
LEWIS
DEVELOPMENT, LLC
BY:
Nate:
eI %W
THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P.
SCOTT, Director
Illinois Environmental Protection Agency
BY:
ROBER A.
MESSI A
Chief
Legal Counsel
DATE:
11
DATE:
1’
(
V/i/
Title:
I
tI
11