BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
RECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
MAY
27
2005
Complainant,
)
STATE OF
ILUNOIS
Pollution Control Board~
PAUL D±FRANCO, SR.,
an Illinois
)
PCB 05-13
resident, and MARK’S
CONSTRUCTION,
INC.,
an
)
(Enforcement
-
Air)
Illinois corporation,
Respondents.
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the 27th day of May,
2005,
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.
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY:
54i~,/()J~J~
STEPH
J.
S/LVEST/R
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
~
Floor
Chicago,
Illinois 60601
312-814-2087
DATE: May 27, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Mr. Joseph R.
Podlewski
Schwartz,
Cooper, Greenberger & Krauss,
Chtd.
180 North LaSalle
Suite 2700
Chicago, Illinois 60601
Mr. Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street,
11th Floor
Chicago,
IL 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
MAY
272005
Complainant,
)
STAJE OF ILLINOIS
Pollution
Control Board
V.
)
PAUL DiFRANCO,
SR., an Illinois
)
PCB 05-13
resident,
and MARK’S
CONSTRUCTION,
INC.., an
.
)
(Enforcement
-
Air)
Illinois corporation,
Respondents.
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 July 29, 2004 a Complaint was filed with the
Illinois Pollution Control Board
(“Board”)
in this matter.
On
May 27,
2005,
a Stipulation and Proposal
for Settlement was
filed with the Board.
2.
Section 31(c) (2)
of the Illinois Environmental
Protection Act
(“Act”), 415 ILCS 5/31(c) (2)
(2002),
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 ~oard
a stipulation and
proposal for settlement.
3.
Section 31(c) (2)
of the Act, 415 5/31(c) (2)
(2002),
provides as follows:
.
Notwithstandir~gthe 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).
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)
(2002).
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)
(2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
of the
State of Illinois
BY:
________________________________
STEPHEN J.
SYLVESTER•
Assistant Attorney General
Environmental Bureau North
188 WestRandolph
~
~
Floor
Chicago, Illinois 60601
312-814-2087
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY
27 2005
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF ILLINOIS
Pollution Control Board
Complainant,
PCB 05-13
(Enforcement
-
Air)
PAUL D±FRANCO, SR.,
an Illinois
resident, and MARK’S
CONSTRUCTION,
INC., an
Illinois corporation,
Respondents.
)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant,
PEOPLE
OF THE
STATE OF ILLINOIS, by LISA
MAJIGAN,
Attorney General of the State of Illinois,
the Illinois
Environmental Protection Agency
(“Illinois EPA”), and
Respondents PAUL DiFRANCO,
SR.
(“DiFranco”), an Illinois
resident, and MARK’S CONSTRUCTION,
INC.
(“MCI”), an Illinois
corporation,
(collectively,
“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.
The parties agree that the
statement of facts contained herein represents a fair summary of
1
the evidence and testimony which would be intçoduced by the
parties if a hearing were held.
The parties further stipulate
that this statement of facts
is made and agreed upon for
purposes of settlement only and that neither the fact that
a
party has entered into this Stipulation, nor any of the facts
stipulated herein,
shall be introduced into evidence in any
other proceeding regarding the claims asserted in the Complaint
except as otherwise provided herein.
If the Board approves and
enters this Stipulation, .Respondents agree to be bound by the
Stipulation and Board Order and not to contest their validity in
any subsequent proceeding to implement or enforce their terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and
of the par.ties consenting hereto pursuant to the Illinois
Environmental Protection Act
(“Act”),
415 ILCS
s/i
et
seq.
(2002)
.
II.
AUTHORIZATION
The undersigned representatives for each party 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.
2
III.
STATEMENT OF FACTS
A.
Parties
1.
On July 29,
2004 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 31 of the Act,
415 ILCS 5/31(2002),
against the Respondents.
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
(2002)
3.
At all times relevant to the Complaint,
Respondent,
DiFranco,
was and is an Illinois resident, and Respondent,
MCI
was and is an Illinois corporation in good standing authorized
to transact business in the State of Illinois.
B.
Site Description
1.
At all times relevant to the Complaint,
Respondent,
DiFranco was
a beneficiary of an Illinois land trust holding
record title to property commonly known as 911 West Busse
Avenue,
Park Ridge,
Cook County,
Illinois
(“Site”)
.
At all
times relevant to the Complaint,
the Site was improved with a
one-story corrimercial building
(“Building”).
3
2.
At all times relevant to the Complaint, Respondent,
MCI conducted certain renovation activities at the Building for
DiFranco.
C.
Allegations of Non-Compliance
1.
On October
25,
2002,
an Illinois EPA inspector
inspected the Building.
On this date,
he observed that floor
tile suspected of containing asbestos had been disturbed with a.
scraper.
2.
On October 26,
2002,
the Illinois EPA collected five
bulk samples of suspect floor tile from the Building for
microscopic analysis.
All of the samples of suspect floor tile
collected this date tested positive for over 2
chrysotile
asbestos.
3.
Based upon the Illinois EPA’s inspection and the
results of the microscopic analysis of floor tile samples
collected from the Building, Complainant contends that the
Respondents have violated the following provisions of the Act,
Board
air, pollution control regulations
(35
Ill. Adm. Code
Subtitle
B,
Chapter
I) and the National Emission Standards for
Hazardous Air Pollutants,
40 C.F.R. Part 61,
Subpart M
(“asbestos NESHAPs”)in connection with the renovation activities
at the Building:
4
Count
I:
Count
II:
Count III:
Count
IV:
Count V:
AIR POLLUTION,
in violation of Section 9(a)
of
the Act, 415 ILCS 5/9(a)
(2002), and 35
Ill. Adm.
Code
201.141.
FAILURE ‘TO PROVIDE NOTIFICATION OF
DEMOLITION/RENOVATION ACTIVITIES,
in violation of
Section 9.1
(d) (1)
of the Act,
415 ILCS 5/9.1
(d) (1)
‘(2002)
,
and 40 CFR 61.145
(b) (1)
FAILURE
TO
FOLLOW
PROPER
EMISSION
CONTROL
PROCEDURES,
in violation of Section 9.1
(d) (1)
of
the Act,
415 ILCS 5/9.1
(d) (1)
(2002)
,
and 40 CFR
61.145(c) (1).
FAILURE TO ADEQUATELY WET ALL RACM,
in violation
of Section 9.1
(d) (1)
of the Act, 415 ILCS 5/9.1’
(d) (1)’ (2002),
and 40 CFR 61.145(c) (6)
FAILURE TO FOLLOW PROPER DISPOSAL PROCEDURES,
in
violation of Section 9.1
(d) (1)
of the Act,
415
ILCS 5/9.1
(d) (1)
(2002), and 40
CFR. 61.150
(b)
D.
Admission of Violations
The Respondents neither admit nor deny the violations
alleged in the Complaint filed in this matter and referenced
herein.
E.
Compliance Activities to Date
Following an inspection of the Building by a representative
of the Illinois EPA on October 25, 2002,
renovation activities
were suspended by the Respondents pending the completion of an
asbestos abatement.
On November 21,
2002, Asbestos Control,
Inc.,
an Illinois-licensed asbestos contractor, commenced an
5
asbestos abatement of the Site on behalf of the Respondents
pursuant to an approved asbestos abatement and remediation plan.
The asbestos abatement was completed on November
27,
2002.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant 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.
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of
the Respondents to comply with any other federal,
state or local
laws or regulations including,
but not limited to,
the Act and
the Board regulations,
35
Ill. Adm.
Code,
Subtitles A through H.
VI.
IMPACT ON THE PUBLIC RESULTING
FROM ALLEGED NON-COMPLIANCE
Section 33 (c)
of the Act, 415 ILCS 5/33 (c) (2002), provides
as follows:
In making its orders and determinations,
the Board
shall take into consideration all the facts and
6
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 state the
following:
1.
The impact to the public resulting from Respondents’
noncompliance was that the Illinois EPA and the public were not
privy to information that
is important to the control of air
pollution in Illinois because no notification was received prior
to the commencement of renovation activities
at the Building.
In addition,
failure to adhere to the work practice standards of
the asbestos
NESHAPs
in connection with regulated building
7
renovation activities may result in the emission of asbestos
fibers,
a known carcinogen.
2.
The Building that is the subject of the Complaint has
social and economic value.
3.
The Building that is the subject of the Complaint
is
suitable to the area in which it
is located.
4.
Complying with the applicable provisions of the Act,
the Board’s air.pollution control regulations and the asbestos
NESHAPs
is both technically practicable and economically
reasonable.
5.
Respondents have ultimately achieved compliance by
abating the asbestos prior to recommencing renovation activities
at the Site.
VII. CONSIDERATION
OF SECTION 42(h)
FACTORS
Section 42 (h)
of the Act, 415 ILCS 5/42 (h) (2002), 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 respondents in attempting to comply
with requirements of this Act and regulations
8
thereunder or to secure relief therefrom as
provided by this Act;
3.
any economic benefits accrued by the respondents
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 respondents
and to otherwise aid in enhancing voluntary
compliance with this Act by the respondents 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 respondents;
6.
whether the respondent voluntarily self-
disclosed,
in accordance with subsection ±of
this Section,
the non-compliance to the Agency;
•and
7.
whether the respondents have agreed. to undertake
a “supplemental environmental project,” which
means an environmentally beneficial project that
•respondents agree to undertake in settlement of
an enforcement action brought under this Act, but
which the respondents are not otherwise legally
required to perform.
In response to these factors, the parties state as follows:
1.
Complainant contends that the violations that are the
subject of the Complaint occurred over a period of several’
weeks, which includes the period of time when the asbestos
containing materials were initially disturbed up until the time
that the Site was fully remediated.
Respondents contend that
9
the duration of the alleged violations was no more than two days
because renovation activities began at the Building the day
prior to the Illinois EPA’s October 25,
2002 inspection and were
voluntarily suspended by the Respondents the next day.
Renovation activities at the Building did not resume until after
asbestos abatement activities were completed.
2.
Complainant contends that the Respondents were not
diligent in initially failing to provide for an adequate
asbestos abatement prior to conducting renovation activities at
the Site.
Subsequent to the Illinois EPA’s inspection on
October 25,
2002, the Respondents took appropriate actions to
abate the asbestos at the Site.
3.
Respondents’ economic benefit from noncompliance was
nominal, and the penalty obtained includes any economic benefit
received.
4.
Complainant has determined, based upon the specific
facts of this matter,
that a penalty of Twenty-Two Thousand
Dollars
($22,000.00)
will serve to deter further violations and
aid in future voluntary compliance with the Act and Board
regulations.
5.
To Complainant’s knowledge, Respondents have no
previously adjudicated violations of the Act.
10
6.
Respondents did not meet the requirements
of’ Section
42(h) (6)
of the Act, 41S ILCS 5/42(h) (6)
(2002)
7.
The Respondents are not performing a supplemental
environmental project pursuant to Section 42(h) (7)
of the Act,
41S ILCS 5/42(h) (7)
(2002)
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondents shall jointly and severally pay a
civil penalty in the sum of Twenty-Two Thousand Dollars
($22,000.00) within thirty
(30) days from the date the Board
adopts and accepts this Stipulation. The Respondent stipulates
that payment has been tenderedto Respondent’s attorney of
record in this matter in a form acceptable to that attorney.
Further, Respondent stipulates that said attorney has been
directed to make the penalty payment on behalf of Respondent,
within thirty
(30)
days from the date the Board adopts and
accepts this Stipulation,
in a manner prescribed below.
The
penalty described in this Stipulation shall be paid by certified
check, money order or electronic funds transfer payable to the
Illinois EPA, designated to the Illinois Environmental,
Protection Trust Fund ‘and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
11
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794-9276
The name and number of the case and MCI’s Federal Employer
Identification Number
(FEIN),
36-4301461,
shall appear on the
check.
If payment is being submitted by electronic funds
transfer to the Illinois EPA,
the electronic funds transfer
shall be made in accordance with specific instructions to be
timely provided to Respondents when the Board adopts and accepts
this Stipulation. A copy of the certified check, money order or
record of electronic funds transfer and any transmittal letter
shall be sent to:
Stephen J.
Sylvester
Assistant Attorney General
Environmental Bureau
188 W. Randolph ~
20th
Floor
Chicago, Illinois 60601
Chris Pressnall
Assistant Counsel’
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276,
2.
Pursuant to Section 42(g)
of the Act,
415 ILCS 5/42(g)
(2002),
interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate.allowable under
Section 1003(a)
of the Illinois Income Tax Act,
35 ILCS 5/1003
(2002).
Interest on any unpaid payment shall begin to accrue
12
from the date the payment is due and continue to accrue until
the date payment
is received.
When partial payment(s)
are made,
such partial payment shall be first applied to any interest on
unpaid payment then due and owing.
All interest on payment owed
shall be paid by certified check, money order or electronic
funds transfer, payable to the Illinois EPA, designated to the
Illinois Environmental Protection Trust Fund and delivered to
the address and in the manner described above.
3.
For purposes of payment and collection, Respondents’
may be reached at the following addresses:
Dr. Paul DiFranco,
Sr.
1835 Prairie’
Park Ridge,
Illinois 60068
Mark’s Construction,
Inc.
c/o Marek Kolbiarz
414 Talcott
Park Ridge,
Illinois 60068
4.
In the event of default of this Section VIII.A,
the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and
reasonable attorney’s fees.
B.
Future
Use
Notwithstanding any other language in thiâ Stipulation to
the contrary, and in consideration of the mutual promises and
13
conditions contained in this Stipulation,
including the Release
from Liability contained in Section VIII.D,
below,
the
Respondents hereby agree that 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 promulgated thereunder for
all violations alleged in the Complaint in this matter,
for
purposes of Section 39(a)
and
(1)
and/or 42(h)
of the Act, 415
ILCS 5/39(a)
and(i)
and/or 5/42(h) (2002).
Further, Respondents
agree to waive any rights to contest,
in any subsequent
enforcement action
or’ permit proceeding, any allegations that
these alleged violations were adjudicated.
C.
Cease and Desist
The Respondents shall cease and desist from future
violations of the Act, Board air pollution control regulations
and the asbestos NESHAPs’that were the subject matter of the
Complaint as outlined in Section III.C
(“Allegations of Non-
Compliance”)
of this Stipulation.
D.
Release
from Liability
In consideration of the Respondents’
payment of the
$22,000.00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder, to Cease and
14
Desist
as contained in Section VIII.C and upon the Pollution
Control Board’s acceptance and approval of the terms of this
Stipulation and Proposal for Settlement,
the Complainant
re’leases, waives and discharges the Respondents from any further
liability or penalties for violations of the Act, Board air
pollution control regulations and the asbestos NESHAPs 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 29,
2004.
The Complainant reserves,
and this Stipulation is without
prejudice to,
all rights of the State of Illinois 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 of this Stipulation.
Nothing in this Stipulation is intended as a waiver,
discharge,
release, or covenant not to sue
for any claim or
15
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 Respondents.
E.
Right
of Entry
In addition to any other authority,
the Illinois EPA,
its
employees and representatives,
and the Attorney General, her
agents and representatives,
shall have the right of entry into
and upon the Building,
at all reasonable times for the purposes.
of carrying out inspections.,
In conducti,ng 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.
F.’
Enforcement of Board Order
1.
Upon the entry of the Board’s Order approving and
accepting this Stipulation and Proposal for Settlement,
that
Order is a binding and enforceable order of the Illinois
Pollution Control Board and may be enforced as such through any
and all available means.
•
16
2.
Respondents agree that notice of any subsequent
proceeding to enforce the Board Order approving and accepting
this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process.
3.
The parties agree that,
if the Board does not approve
and accept this Stipulation and Proposal for Settlement,
then
neither party is bound by the terms herein.
4.
It
is the intent of the Complainant and Respondents
that the provisions of this Stipulation and Proposal for
Settlement and any Board Order accepting and approving such
shall be severable,
and should any provision be declared by a
court of competent jurisdiction to be inconsistent with state or
federal
law, and therefore unenforceable, the remaining clauses
shall remain in full force and effect.
The
remainder of this page has been intentionally left blank.
17
WHEREFORE, Complainant and Respondents 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
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/
Asbes~~~itigation
Div~i~on
BY:
ILLINOIS
ENVIRONMENTAL PROTECTION
:NC~L~
~
WILLIAM D.
NGERS
L
Acting Chief Legal Counsel
PAUL DIFRANCO,
SR.
L
DATE:
/~7wtJ
~2~
DATE
:________
MARK’S CONSTRUCTION,
INC.
Name:
-
//‘
t2,(
DATE:
Envir~rIthenta1Bureau
Assistant Attorney General
BY:
Tit 1e:
ro_~.
1—
18
CERTIFICATE OF SERVICE
I,
STEPHEN J. SYLVESTER,
an Assistant Attorney General in
this case,
do certify that
I caused to be served this 27th day
of May,
2005,
the foregoing Stipulation and Proposal for
Settlement,
Motion to Request Relief From Hearing Requirement
and Notice of Filing upon the ‘persons listed on said Notice by
depositing same in an envelope,
first class 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.
cS1~~
/s~,~&
STEP~N J. rLVEST,~
