ILLINOIS POLLUTION CONTROL BOARD February 21, 2013 PEOPLE OF THE STATE OF ILLINOIS, Complainant, v. PCB 13?29 (Enforcement - Water) 401 NORTH WABASH VENTURE, LLC, a Delaware limited liability company, Respondent. OPINION AND ORDER OF THE BOARD (by TA. Holbrook): On December 18, 2012, the Of?ce of the Attorney General, on behalf of the People of the State of Illinois (People), ?led a two-count complaint against 401 North Wabash Venture, LLC (respondent). The complaint concerns operation of a heating, ventilation, and air conditioning system containing a cooling water system at respondent?s property located at 401 North Wabash Avenue, Chicago, Cook County, which is commonly known as Trump Tower. The parties now seek to settle without a hearing. For the reasons below, the Board accepts the parties? stipulation and proposed settlement. Under the Environmental Protection Act (Act) (415 ILCS 5 (2010)), the Attorney General and the State?s Attorneys may bring actions before the Board on behalf of the People to enforce Illinois? environmental requirements. See 415 ILCS 5/31 (2010); 35 111. Adm. Code 103. In this case, the People allege that respondent violated Sections 12(a) and 12(t) of the Environmental Protection Act (Act) (415 ILCS 12(1) (2010)) by causing or allowing the discharge of a contaminant ?om a point source into the waters Of the State without a National Pollutant Discharge Elimination System permit. II On December 18, 2012, the PeOple and respondent ?led a stipulation and proposed settlement, accompanied by a request for relief ?'om the hearing requirement of Section 3 of the Act (415 ILCS (2010)). This ?ling is authorized by Section 31(c)(2) of the Act (415 ILCS (2010)), which requires that the public have an opportunity to request a hearing whenever the State and a respondent propose settling an enforcement action without a public hearing. See 35 Ill. Adm. Code The Board provided notice of the stipulation, proposed settlement, and request for relief. The newspaper notice was published in the Chicago Sun-Times on January 14, 2013. The Board did not receive any requests for hearing. The Board grants the parties? request for relief ?om the hearing requirement. See 415 ILCS 5/3 I (2010); 35 Ill. Adm. Code Section 103.302 of the Board?s procedural rules sets forth the required contents of stipulations and prOposed settlements. See 35 Ill. Adm. Code 103.302. These requirements include stipulating to facts on the nature, extent, and causes Of the alleged violations and the nature of respondent?s operations. Section 103.302 also requires that the parties stipulate to facts called for by Section 33(c) of the Act (415 ILCS 5/33(c) (2010)), which bears on the reasonableness of the circumstances surrounding the alleged violations. Respondent does not af?rmatively admit the alleged violations. The stipulation also addresses the factors of Section 42(h) of the Act (415 ILCS 5/42(h) (2010)), which may mitigate or aggravate the civil penalty amount. Respondent agrees to pay a civil penalty of $46,000.00. The People and respondent have satis?ed Section 103.302. The Board accepts the stipulation and proposed settlement. This opinion constitutes the Board?s ?ndings of fact and conclusions of law. ORDER 1. The Board accepts and incorporates by reference the stipulation and proposed settlement. 2. Respondent must pay a civil penalty of $46,000.00 no later than Monday, March 25, 2013, which is the ?rst business day following the 30th day after the date of order. Respondent must pay the civil penalty by certi?ed check or money er payable to the Illinois Environmental Protection Agency for deposit into the iromnental Protection Trust Fund The case name and case number must appear on the face of the certi?ed check or money order. 3. Respondent must submit payment of the civil penalty to: Illinois Environmental Protection Agency Fiscal Services Division 1021 North Grand Avenue East 0. Box 19276 1d, Illinois 62794-9276 3px . .41 must send a copy of the certi?ed check or money order and any . as: .'Ttal 1L ?r to: Thomas H. Shepherd Assistant Attorney General nmental Bureau -. Attorney General's Of?ce ?a W. Washington Street, Suite 1800 Chicago, 60602 4. Penalties unpaid within the time prescribed will accrue interest under Section 42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2010)) at the rate set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/ 1003(a) (2010)). 5. Respondent must cease and desist from future violations of the Act that were the subject matter of the Complaint. IT IS SO ORDERED. Section 41 of the Environmental Protection Act provides that ?nal Board orders may be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the order. 415 ILCS 5/41(a) (2010); see also 35 Ill. Adm. Code 101.906, 102.706. Illinois Supreme Court Rule 335 establishes ?ling requirements that apply when the Illinois Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The Board?s procedural rules provide that motions for the Board to reconsider or modify its ?nal orders may be ?led with the Board within 35 days after the order is received. 35 Ill. Adm. Code 101.520; see also 35 111. Adm. Code 101.902, 102.700, 102.702. 1, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the Board adopted the above order on February 21, 2013 by a vote of 5-0. WW John T. Then'iault, Assistant Clerk Illinois Pollution Control Board Electronic Filing - Renived. Clark's Difice: 12/ BEFORE THE ILLINOIS POLLUTION CONTROL BOARD PEOPLE OF THE STATE OF ILLINOIS. Complainant, v. PCB No. 12- (Enforcement - 401 NORTH WABASH VENTURE, LLC, a Delaware limited liability company, Respondent. STIPULATION AND PROPOSMOR SETTLEMENT Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney General of the State of Illinois, the Illinois Environmental Protection Agency (?Illinois and 401 NORTH WABASH VENTURE, LLC (?Respondent?), (collectively ?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 415 ILCS 5/1, et seq. (2010), 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 ?nal adjudication of this matter. . 1- A. Parties 1. On December 18, 2012, a Complaint was ?led 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 - Electronic Filing - Racived. Clerk's llffice: 12/ upon the request of the Illinois EPA, pursuant to Section 31 of the Act, 415 ILCS 5/31 (2010), 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 (2010). - 3. At all times relevant to the Complaint, Respondent was and is a Delaware 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 the commercial portion of the building located at 401 North Wabash Avenue, Chicago, Cook County, Illinois (?Facility" or - ?Site?), including the heating, ventilation, and air conditioning system and HVAC cooling water system for the Facility. 4. On July 12, 2011, the Illinois EPA inspected the Site and observed thermal process non-contact cooling water from the Site's HVAC cooling water system discharging directly into the Chicago River from piping at the Site?s southwest embankment on the river. 5. On September 13, 2011, the Illinois EPA sent Respondent Violation Notice No. W-2011-50384 (?Violation Notice?), which alleged among other things that Respondent was discharging thermal contaminants without a National Pollutant Discharge Elimination System permit in violation of the Act. 6. A?er receipt of the Violation Notice, Respondent submitted an application to the Illinois EPA for a NPDES permit. Thereafter, Re3pondent submitted a revised NPDES permit application. 7. Reapondent?s revised application was approved and, on September 7, 20 2, the Illinois EPA issued to ReSpondent NPDES Permit Number IL0079812 authorizing the discharge 2 Electronic Filing - Racivad. Clark's ?ffica 12/ of non-contact cooling water, unused river water, strainer backwash and storm water runoff from the HVAC cooling water system directly into the Chicago River subject to the terms and conditions thereof Permit No. 8. Prior to September 7, 2012, the Respondent did not possess an NPDES permit for the discharge of a contaminant ?'om a point source into the waters of Illinois. B. Allegations of Non-Compliance Complainant contends that the Respondent has violated the following provisions of the Act: Count I: Water Pollution Violation of Section 12(a) of the Act, 415 ILCS 5/ 12(a) (2010); and Count II: Discharge of Contaminants Without a NPDES Permit Violation of Section 12(i) of the Act, 415 ILCS 5/12(t) (2010). 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 Reapondent does not af?rmatively 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. II. APPLICABILITY This Stipulation shall apply to and be binding upon the Parties to the Stipulation. The Respondent shall not raise as a defense to any enforcement action taken pursuant to this Stipulation the failure of any of its of?cers, directors, agents, employees or successors or assigns Electronic Filing - Recived. Elerk's ?ffice: 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 (2010). INIPACT ON THE PUBLIC RESULTING FROM ALLEGED NON- COWLIAN CE Section 33(c) of the Act, 415 ILCS 5133(c) (2010), 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: l. S. the character and degree of injury to, or interference with the protection of the health, general welfare and physical prOperty of the people; the social and economic value of the pollution source; 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; the technical practicability and economic reasonableness of reducing or eliminating the emissions, discharges or deposits resulting from such pollution source; and any subsequent compliance. In reaponse to these factors, the Parties to the Stipulation state the following: 1. The health, general welfare and physical property of the people were threatened and the Illinois information gathering responsibilities were hindered by the Respondent?s alleged violations. 2. There is social and economic bene?t to the Facility. Electronic Filing Reeived. Clerk's Uffice: l2/lEl/2?l2 3. Operation ofthe Facility is suitable for the area-in which it is located. 4. Operating the Facility in compliance with all applicable statutory and regulatory requirements is both technically practicable and economically reasonable. 5. Respondent obtained Permit No. IL0079812 after Respondent was noti?ed of the alleged violations. IV. CONSIDERATION OF SECTION 4219! FACTORS Section 42(h) of the Act, 415 ILCS 5/42(h) (2010, re?ective as ofAugust? 23, 2011), 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 bene?ts accrued by the reapondent because of delay in compliance with requirements, in which case the economic bene?ts shall be determined by the lowest cost altemative'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; 7. whether the respondent has agreed to undertake a ?supplemental environmental project,? which means an environmentally bene?cial 5 Filing - Racivad. Elerk's UHice: 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; and 8. whether the respondent has successfully completed a Compliance Commitment Agreement under subsection of Section 31 of this Act to remedy the violations that are the subject of the complaint. In response to these factors, the Parties to the Stipulation state as follows: I. The Respondent failed to obtain a NPDES permit for the discharge of thermal contaminant from a point source into the waters of the State of Illinois. The Respondent has been discharging the water that is new subject to NPDES Permit No. 1100791312 into the Chicago River since 2008. 2. The Respondent was not diligent in obtaining a NPDES permit before being contacted by the Illinois EPA. After being contacted by the Illinois EPA. the Respondent was diligent in obtaining a permit. 3. The Illinois EPA has determined that the penalty of Forty-six Thousand Dollars referenced in paragraph 4 below exceeds the economic bene?t to the ReSpondent associated with the alleged violations. For purposes of making that determination concerning the Respondent?s economic bene?t and the appropriate penalty amount, the Parties to this Stipulation have taken into consideration the ?nancial bene?t the Respondent received by not having paid permitting fees since it began discharging water into the Chicago River in 2008. 4. Complainant has determined, based upon the Speci?c facts of this matter, that a penalty of Forty-Six Thousand Dollars ($46,000) will serve to deter ?lrther violations and aid in future voluntary compliance with the Act and Board regulations. 5. To Complainant's knowledge, Respondent has no previously adjudicated 6 Electronic Filing - Ranived. Elerk's ?fiice: violations of the Act. 6. ReSpondent did not self-disclose the alleged violations. 7. The settlement of this matter does not include a supplemental environmental project. 8. A Compliance Commitment Agreement was not at issue in this matter. V. TERMS OF SETTLEMENT A. Penalty Payment I. The ReSpondent shall pay a civil penalty in the sum of Forty-Six Thousand Dollars 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 ?Jll payment is received. Where partial payment is made on any penalty amount that is due, such partial payment shall be ?rst applied to any interest on unpaid penalties then owing. Electronic Filing Recived. Clerk's llffice 2012 C. Payment Procedures 1. All payments required by this Stipulation shall be made by certi?ed check or money order payable to the Illinois EPA for deposit into the Environmental Protection Trust Fund Payments shall be sent by ?rst class mail and delivered to: Illinois Environmental Protection Agency Fiscal Services Mailcode #2 1021 North Grand Avenue East P.O. Box 19276 Spring?eld, Illinois 62794-9276 2. The case name and case number shall appear on the face of the certi?ed check or money order. 3. A copy of the certi?ed check or money order and any transmittal letter shall be sent to: Thomas H. Shepherd Assistant Attorney General Environmental Bureau Illinois Attorney General?s Of?ce 69 W. Washington Street, 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 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 8 Electronic Filing - Recived. Clerk's Uffice: 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 ?iture violations of the Act that were the subject matter- of the Complaint. E. Release from Liability In consideration of the Respondent?s payment of the $46,000.00 penalty and 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 and Illinois EPA release, waive, and discharge the ReSpondent for any further liability or penalties for violations of the Act that were the subject matter of the Complaint herein, including, liability for any unpaid NPDES permitting fees ?'om 2008 to the date of entry of this Consent Order. The release set forth above does not extend to any matters other than those expressly speci?ed in Complainant's Complaint ?led on December 18, 2012. 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. Electronic Filing- Recived Elerk's ?ffice: 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 ?lmre, in law or in equity, which the State of Illinois may have against any person, as de?ned by Section 3.315 of the Act, 415 ILCS 5/3315, 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 party whom they represent to enter into the terms and conditions of this Stipulation and to legally bind them to it. til Electronic Filing - Renived. Clark's Difiua: WHEREPORE, the Parties to the Stipulation request that the Board adOpt and accept the foregoing Stipulation and Proposal for Settlement as written. PEOPLE OF THE STATE OF ILLINOIS ENVIRONMENTAL ILLINOIS PROTECTION AGENCY by LISA MADIGAN Attorney General State ofIllinoiS ngk?x/F? Lxm?nterim Dirgztor MATTHEW J. DUNN, Chief Environmental Enforcement! Asbestos LitigatiOn Division BY QAMWMW IZAEBTH WALLACE Chief Assistant Attomey General Environmental Bureau DATE: Ll/i?l/j .L 401 NORTH WABASH VENTURE, LLC Bil-M I DATE: 1.2. in (in.