BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS,
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Complainant,
v.
PRAEDIUM DEVELOPMENT
CORPORATION,
an Illinois corporation,
and PLAZA EXCAVATING, INC., an
Illinois corporation,
Respondents.
PCB No.
09-03
(Enforcement -Water)
NOTICE OF FILING
To:
See attached Service List
PLEASE TAKE NOTICE that on the 21st day of May, 2009, the People ofthe State of Illinois,
filed with the Illinois Pollution Control Board, a
MOTION FOR RELIEF FROM HEARING
REQUIREMENT
and a
STIPULATION AND PROPOSAL FOR SETTLEMENT,
true and correct
copies
of which are attached hereto and is hereby served upon you.
By:
DATE: May
21,2009
PEOPLE OF THE STATE OF ILLINOIS,
ex reI.
LISA MADIGAN, Attorney General
of the State of Illinois
George . Theophilos
Assistant Attorney General
Environmental Bureau
West Washington Street,
18
th
Floor
Chicago, Illinois 60602
(312) 814-6986
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, May 21, 2009
Mr. Bradley P. Halloran, Esq.
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago,
IL
60601
Charles Gunnarson, Esq.
SERVICE LIST
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL
62794-9276
Mr. James Brusslan
LEVENFELD PEARLSTEIN, LLC
2 N.
LaSalle St. Suite 1300
Chicago, Illinois 60602
Electronic Filing - Received, Clerk's Office, May 21, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PRAEDIUM DEVELOPMENT
CORPORATION, an Illinois corporation,
and PLAZA EXCAVATING, INC., an
Illinois corporation,
Respondents.
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PCB No. 09-03
(Enforcement -Water)
MOTION FOR 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 hereby moves for relief from the hearing
requirement in this case pursuant to Section
31 (c }(2) of the Illinois Environmental Protection Act
("Act"), 415 ILCS 5/31(c}(2) (2006), and Section 103.300 of the Illinois Pollution Control Board
("Board") Procedural Rules, 35 Ill. Adm. Code 103.300.
In
support of this Motion, the Complainant
states as follows:
1.
Section 31 (c )(2) of the Act allows the parties in certain enforcement cases to request
relief from the mandatory hearing requirement where the parties submit to the Board a Stipulation and
Proposal for Settlement. Section
31 (c )(2) provides as follows:
Notice; complaint; hearing.
* * *
(c )(2) Notwithstanding the provisions of subdivision (1) ofthis 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
Electronic Filing - Received, Clerk's Office, May 21, 2009
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).
2.
Board Procedural Rule 103.300 provides, in relevant part, as follows (emphasis in
original):
Request for Relief from Hearing Requirement in State Enforcement Proceeding.
(a)
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 proposed stipulation and
settlement accompanied by a request
for relief from the requirement of a hearing
pursuant to Section 31 (c )(2) of the Act ....
3.
On July 8, 2008, the Complaint in this matter was filed with the Board.
4.
Subsequently, the parties to this action reached agreement
on a Stipulation and Proposal
For Settlement, which is being filed with the Board concurrently with this motion. No hearing is
currently scheduled in this case.
WHEREFORE, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, respectfully moves for relief from the requirement
of a hearing pursuant to Section 31(c)(2) of the Act and Board Procedural Rule 103.300.
DATE: May 21,2009
BY:
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of t
t te of Illinois
Assistant Attorney General
Environmental BureauIN
orth
69 West Washington Street, 18
th
Floor
Chicago, Illinois 60602
312-814-6986
Electronic Filing - Received, Clerk's Office, May 21, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
PRAEDIUM DEVELOPMENT
CORPORATION, an Illinois corporation,
and PLAZA EXCAVATING, INC., an
Illinois corporation,
Respondents.
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PCB No. 09-03
(Enforcement -Water)
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"),
PRAEDIUM DEVELOPMENT
CORPORATION ("Praedium"), an Illinois corporation, and PLAZA
EXCAVATING,
INC. ("Plaza"), an Illinois corporation, (Praedium and Plaza together as the
"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 511
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.
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Electronic Filing - Received, Clerk's Office, May 21, 2009
I. STATEMENT OF FACTS
A.
Parties to the Stipulation
1.
On July 8, 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
Respondent.
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 this Complaint, Respondent Praedium owned and developed
the
"Town Center Promenade," an area of land approximately ten acres in size located at the
northwest comer
ofthe intersection of Long Grove Road and Route 12 ("Rand Road") in Deer Park,
Lake County, Illinois (the "Site"). Praedium hired Plaza as one of its construction contractors. Plaza
was responsible for earthwork and grading at the Site.
4.
The Respondents engaged in construction activities at the Site. These construction
activities involved excavating and grading soil at the
Site. The Complainant alleges that between
July
20, 2006 and September
11,
2006, on dates better known to the Respondents, disturbed soil and
sediment at the
Site was carried by storm water into an unnamed tributary of Buffalo Creek and into
an area
of wetlands that is located to the east of the Site.
5.
The Complainant alleges that after September 11, 2006, and prior to October 13,
2006, on a date or dates better known to the Respondents, the Respondents caused and/or allowed
the construction and/or installation
of a sanitary sewer at the Site, but did not possess a permit from
the Illinois
EPA to install the sanitary sewer. The Respondents assert that they possessed a permit to
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Electronic Filing - Received, Clerk's Office, May 21, 2009
install a sanitary sewer at the Site from the Metropolitan Water Reclamation District of Greater
Chicago.
B.
Allegations of Non-Compliance
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:
Count IV:
Count
V:
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) ofthe 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
51l2(d) (2006).
Failure to implement and comply with the stormwater pollution prevention
plan, in violation
of Part IV. of the General Stormwater Permit, Section
12(f)
of the Act, 415 ILCS 5/12(f)(2006), and Section 309.102(a) of the
Board Water Pollution Regulations,
35 Ill. Adm. Code 309.102(a).
Causing or allowing the construction and/or installation of a sanitary sewer,
in violation
of Section 12(b) of the Act, 415 ILCS S/12(b)(2006), and
Section
309.202(a) ofthe Board Water Pollution Regulations, 35 Ill. Adm.
Code
309.202(a).
C.
Admission of Violations
The Respondents neither admit nor deny the violations alleged'in the Complaint filed in this
matter and referenced herein.
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Electronic Filing - Received, Clerk's Office, May 21, 2009
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 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:
fu 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
ofthe health, general welfare and physical property ofthe
people;
2.
the social and economic value ofthe pollution source;
3.
the suitability or unsuitability of the pollution source to the area in
which it is located, including the question
of priority oflocation in the
area
involve~;
4.
the technical practicability and economic reasonableness of reducing
or eliminating the emissions, discharges or deposits resulting from
such pollution source; and
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Electronic Filing - Received, Clerk's Office, May 21, 2009
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, and by failing to allow the Illinois EPA to
review and evaluate the engineering and environmental soundness
ofthe Sanitary Sewer prior to its
construction.
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
was both technically practicable and economically reasonable to implement
adequate erosion control measures at the
Site, and to obtain a construction permit from the Illinois
EPA prior to installing the Sanitary Sewer, in compliance with the Act and Board regulations.
5.
The Respondents have subsequently complied with the Act and the Board
Regulations.
IV. CONSIDERATION OF SECTION 42(b) 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 ofthis Act and regulations
thereunder or to secure relief therefrom as provided
by this Act;
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Electronic Filing - Received, Clerk's Office, May 21, 2009
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
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.
The alleged stormwater violations occurred at the Site during a period of time
beginning no later than July
20,2006 and continuing until at least September 11, 2006. The alleged
,unpermitted installation ofthe sanitary sewer at the Site occurred between September 11, 2006 and
October 13, 2006.
2.
The Respondents were diligent in attempting to return to compliance with the Act,
and Board regulations, once the Illinois EPA notified them
of their alleged noncompliance.
3.
The penalty obtained exceeds any economic benefit realized by the Respondents as a
result
of any noncompliance with the Act or Board regulations.
4.
Complainant and the Illinois EPA have determined, based upon the specific facts of
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Electronic Filing - Received, Clerk's Office, May 21, 2009
this matter, that a combined penalty of Forty Thousand Dollars ($40,000.00) will serve to deter
further violations and aid in future voluntary compliance with the Act and Board regulations.
5.
There is no record of any prior enforcement action brought against the Respondents
under the Act.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement ofthismatter does not include a supplemental environmental project.
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondents Praedium and Plaza shall pay a civil penalty of Forty Thousand
Dollars
($40,000.00) within thirty (30) days from the date the Board adopts and accepts this
StipUlation.
B.
Interest and Default
1.
Ifthe 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 penalties
shall begin to accrue from the date such are due and continue to accrue to the date
full
payment is
received. Where partiai 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.
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Electronic Filing - Received, Clerk's Office, May 21, 2009
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 (UEPTF").
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 the Respondents' 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.
Effective immediately, the Respondents shall at all times apply for and obtain any
and all permits required for any and all construction activities they conduct in the
State and
comply with the terms and conditions
of any such permit(s) obtained.
2.
In addition to any other authority, 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 Respondents' 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
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Electronic Filing - Received, Clerk's Office, May 21, 2009
employees and representatives, may take photographs, samples, and collect information, as they
deem necessary.
3.
This Stipulation in no way limits or affects the responsibilities ofthe Respondents 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 Respondents' payment of a $40,000.00 penalty, and upon the Board's
approval ofthis Stipulation, the Complainant releases, waives and discharges the 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 filed on July 8,
2008. The
Complainant reserves, and this Stipulation is without prejUdice to, all rights
of the State oflllinois
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 ofthis
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
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Electronic Filing - Received, Clerk's Office, May 21, 2009
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 Respondents.
F.
Enforcement and Modification of Stipulation
1.
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 ofthis 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.
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Electronic Filing - Received, Clerk's Office, May 21, 2009
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
Environmental Bureau
Assistant Attorney General
Date:------=::5~1
f-/---L/c-e 1-[
__
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ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DOUGLAS P. SCOTT,
Director
Illinois Environmental Protection Agency
Chief Legal Counsel
Electronic Filing - Received, Clerk's Office, May 21, 2009
PRAEDIUM DEVELOPMENT
CORPORATION
By:d
Name: e
e6
tc.e
D
H
1'oc'tI(Q
raula'
Title: . CPIle:rS
(.':>6N'T"
Date:
~ยท2.S
-01
PLAZA EXCAVATING, INC.
BY:
Name:, _________ _
Title: _________ _
Dare: _____________ _
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("'
Electronic Filing - Received, Clerk's Office, May 21, 2009
PRAEDIUM DEVELOPMEJ.
CORPORATION
BY:
Nrune: _______________
~
Title:. _____________
-+
. Date: __________ -+-__
PLAZA EXCAVATING, INC ..
John Conrad
Title:
Member
Date:
March 27. 2q09
I
i
I
I
i
I
r
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Electronic Filing - Received, Clerk's Office, May 21, 2009
CERTIFICATE OF SERVICE
I, George.D. Theophilos, an Assistant Attorney General, do certify that I caused to be mailed,
this
21
st
day of May, 2009, the foregoing
MOTION FOR RELIEF FROM HEARING
REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT
to the persons
listed
on the attached Service List by first class mail, with postage pre-paid.
Electronic Filing - Received, Clerk's Office, May 21, 2009
