BEFORE THE ILLINOIS POLLUTION CONTOL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
E.F. HElL, LLC, an Illinois limited liability )
company,
)
PCB No. 09-110
(Enforcement - Land)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the 27th day of August, 2009, I filed with the Clerk of
the Illinois Pollution Control Board a Stipulation and Proposal for Settlement and a Motion to
Request Relief from Hearing Requirement, copies
of which are attached hereto and are hereby
served upon you.
DATE: August 27,
2009
PEOPLE
OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
BY'4~s~~
Assistant Attorney General
Environmental Bureau
North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
ssylvester@atg.state.il.us
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Attorney for Respondent
Bill S. Forcade
Jenner
&
Block LLP
330 N. Wabash Avenue
Chicago, IL
60611-7603
Mr. Bradley P. Halloran
Hearing Officer
Illinois
Pollution Control Board
SERVICE LIST
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601
BEFORE THE ILLINOIS POLLUTION CONTOL BOARD
PEOPLE OFTHE STATE OF ILLINOIS,
)
)
Complainant,
)
)
v.
)
)
E.F. HElL, LLC, an Illinois limited liability )
company,
)
)
Respondent.
)
PCB No. 09-110
(Enforcement - Land)
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 as to Respondent, E.F. Heil, LLC, an Illinois limited
liability company.
In support thereof, the Complainant states as follows:
1.
On May 20, 2009, a Complaint was filed with the Illinois Pollution Control Board
("Board") in this matter. On August 27, 2009, a Stipulation and Proposal for Settlement was filed
with
the Board in this matter.
2.
Section 31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31(c)(2)
(2008), 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.
3.
Section 31(c)(2)
of the Act, 415 5/31(c)(2) (2008), 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
reqliest 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).
4.
No hearing is currently scheduled in the instant case.
5.
The Complainant requests the relief conferred by Section 31(c)(2) of the Act, 415
ILCS 5/31(c)(2)
(2008).
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) (2008).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
BY'-{~-'~
__ _
Assistant
Environmental
Attr.:~~neral
Bureau North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
ssylvester@atg.state.il.us
Electronic Filing - Received, Clerk's Office, August 27, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
v.
E.F. HElL, LLC, an Illinois limited liability
company,
Respondent.
PCB NO. 09-110
(Enforcement-Land)
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
E.F. HEll, 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 5/1
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 the Stipulation that it be a final adjudication of
this matter.
I. STATEMENT OF FACTS
A.
Parties
l.
On May 20, 2009, 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
1
Electronic Filing - Received, Clerk's Office, August 27, 2009
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 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 Complain.t, Respondent was and is a limited liability
company that
is
authorized to transact business in the State of Illinois. At all times relevant to the
Complaint, Respondent owned and operated a clean construction and demolition debris
("CCDD") fill operation on approximately 93 acres, lucated at CR 089SE, Kankakee, Kankakee
County, Illinois (ASite@).
4.
On August 8, 2005, Respondent applied to the Illinois EPA for interim
authorization to operate a
CCDD fill operation at the Site.
5.
On July 10, 2008, the Illinois EPA issued to Respondent CCDD Permit No.
CCDD2007-034 to operate a CCDD fill operation at the Site.
B.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board Waste Disposal Regulations and Board CCDD Regulations:
Count I:
Count II:
Count Ill:
Conducting a Waste Disposal Operation Without a Permit: Violation of
Section 21(d)(l) of the Act, 415 lLCS 5/2l(d)(1) (2006).
Failure to Determine If Waste Was Hazardous or Special: Violation of
Section 21(e) of the Act, 415 ILCS 5/21(e) (2006), and Sections 722.111
and 808.121(a) of the Board Waste Disposal Regulations, 35 Ill. Adm.
Code 722.111 and 808.121(a).
Disposing
of Non-Clean Construction or Demolition Debris Waste at the
Site: Violation of Section 22.51(a) of the Act, 415 lLCS 5/22.5 1(a) (2006),
and Sections 1100.201(a) and 1100.205(f) and (g) of the Board CCDD
Regulations, 35 Ill. Adm. Code 1100.201(a) and
1100.205(f)
and (g).
2
Count IV:
Failure to Use a Photo Ionization Detector or Other Equivalent Device to
Check All Incoming Loads: Violation of Section 22.51(a) and (c) of the
Act, 415 ILCS
5/22.51(a) and (c) (2006), and Sections 1100.201(a) and
1100.205(a)(
1)
and (c)(2) of the Board CCDD Regulations, 35 Ill. Adm.
Code 1100.2"01(a) and 1100.205(a)(l) and (c)(2).
Count V:
Failure to Conduct Daily Discharge Inspections: Violation of Section
22.51(a)
and (c) of the Act, 415 ILCS 5/22.51(a) and (c) (2006), and
Sections 1l00.20l(a) and 1l00.205(b)(l) and (c)(3) of the Board CCDD
Regulations, 35 Ill. Adm. Code 1100.201(a) and 1100.205(b)(1) and (c)(3).
C.
Non-Admission of Violations
The Respondent denies the viOlations alleged in the Complaint filed in this matter and
referenced above.
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 Respundent 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.
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:
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
Electronic Filing - Received, Clerk's Office, August 27, 2009
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. The environment was threatened by Respondents' failure to properly screen incoming
loads at the Site and reject
non~CCDD
waste, to timely determine if the non-CCDD waste, in the
form of painted brick, accepted by Respondent was a special waste or a hazardous waste, to
perform load checks of
<111
incoming loads for volatile organic compounds with a photo ionization
detector or other equivalent device, and to conduct daily discharge inspections at the Site.
2.
The Site has social and economic benefit.
3.
Respondent's activities at the Site were suitable for the area in which they occurred.
4.
Properly screening incoming loads at the Site and rejecting non-CCDD waste,
timely
determining if the non-CCDD waste, in the form of painted brick, accepted by Respondent
was a special waste or a hazardous waste performing load checks of all incoming loads for volatile
organic compounds with a photo ionization detector or other equivalent device, and conducting
daily discharge inspections at the Site were both technically practicable and economically
reasonable.
5.
Respondent has subsequently complied with the Act and the Board Waste Disposal
Regulations and Board CCDD Regulations.
4
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;
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 Asupplemental
environmental project,@ which means an environmentally beneficial project
that a respondent agrees
to
undertake in settlement of eln 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.
Although it is unknown how long the Respondent accepted the loads without
properly screening for volatile organic compounds or how long the painted bricks were stored on
the property without Respondent making a special or hazardous waste determination, the duration
5
Electronic Filing - Received, Clerk's Office, August 27, 2009
of the violations that are the subject of the Complaint are alleged to have occurred on or before
May
25, 2007
and were individually resolved at various times in the following year prior to the
June
2, 2008
Illinois EPA follow-up inspection.
2.
Respondent took all necessary steps to remedy the violations and the Respondent's
CCDD fill operation is currently in compliance.
3.
The civil penalty ubtained includes any
eC~.momic
benefit that Respondent may
have accrued as a result of the delay in compliance.
4.
Complainant states that a civil penalty payment of TwentyThousand Dollars
($20,000.00)
will serve to deter further violations by Respondent cmd to otherwise aid in
enhancing voluntary cumpliance with the Act cmd the BOclrd Waste Disposal Regulations and
Board CCDD Regulations by Respondent and ,-)ther persons similarly subject to the Act and the
Board Waste Disp()sal Regulations and BOclrd CCDD Regulations.
5.
To Complainant's knowledge, Respondent has had no previously adjudicated
violations of the Act and the Bocll"d Waste Disposal Regulations and Board CCDD Regulations.
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
1.
The Respondent shall pay a civil penalty in the sum of Twenty Thousand Dollars
($20,000.00)
within thirty
(30)
days from the date the Board adopts and accepts this Stipulation.
6
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.
Pur:>uant to Section 42(g) of the Act, interest shall accrue on any pen"lty 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
The name, case i1umber 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:
Stephen J. Sylvester
Environmental Bureau
7
Illinois Attorney General=s Office
69
W. Washington Street, Suite 1800
Chic~lgo,
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 Respoi.dent'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
Gent.ral, her
empk)yee~
and
repre~entativi::~,
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.
~.
Release from Liability
In consideration of the Respondent's payment of the $20,000.00 penalty, its commitment
to cease and desist as contained in Section v.O. above, completion of all activities required
hereunder, 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
8
Electronic Filing - Received, Clerk's Office, August 27, 2009
Complaint filed on May 20, 2009. The Complainant reserves, and this Stipulation is without
prejudice to, all rights of the State of lllinois 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 andlor
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 o'f
this Stipulation.
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to
sue for any claim or cause uf action, administrative or judicial, civil or criminal, past or future, in
law or in equity, which the State of lllinois 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 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 the Parties to the Stipulation certify that they are fully
authorized by the !J,ll.ty 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 the StipulationJequest that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS, THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
LISA MADIGAN, Attorney General
State of Illinois
MATTHEW]. DUNN, Chief
Environmental Enforcement/
Asbe'"~'''''''''''
Environ
Assistant Attorney General
DATE
'tIl \
(O~
RESPONDENT, E.F. HElL, LLC
I3Y:
Name:, __________________ _
Title:
_______________ __
DATE: ______________ _
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
DATE: ______________
~
(s
(01
__
10
Electronic Filing - Received, Clerk's Office, August 27, 2009
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:
_____________ _
BY:
Title:, __ ---":...=-::::.JO:::::'-------7'--__ _
DATE: ___
.L..LI---'~L.....t~~I__---
1787830.1
THE ILLINOIS ENVIRONMENTAL
PROTECfION
AGENCY,
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
BY: ________________________ __
JOHN J. KIM
Chief Legal Counsel
DATE:
__________________ __
10
Electronic Filing - Received, Clerk's Office, August 27, 2009
CERTIFICATE OF SERVICE
I, STEPHEN ]. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this
27th day of August, 2009, the foregoing Stipulation and Proposal for
Settlement,
Motion to Request Relief from Hearing Requirement and Notice of Filing upon the
persons listed
on the Service List by depositing same in an envelope, first clqss postage prepaid,
with
the United States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before
the
hour of 5:00 p.m.
