BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN, Attorney
General of the State of Illinois,
complainant,
V.
PCB 05-103
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 55 E. JACKSON, LLC,
an Illinois Limited Liability
Company,
Respondents.
NOTICE OF FILING
TO:
William Seith
631 E. Butterfield Road
Suite 315
Lombard, IL 60148
PLEASE TAKE NOTICE that I have today filed electronically with the
office of the Clerk of the Pollution Control Board the Stipulation and
Proposal for Settlement with Respondents Marc Realty, Inc. and 55 E.
Jackson, LLC, and Motion for Relief from Hearing Requirement a copy of
which is herewith served upon you.
Dated: November 14, 2005
office of the Attorney General
Environmental Bureau
188 W. Randolph Street,
2
0 th
Floor
Chicago, Illinois 60601
312 814-3532
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois,
Complainant,
V.)
PCB 05-103
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 55 E. JACKSON, LLC,
an Illinois Limited Liability
Company,
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 November 30, 2004, a Complaint was filed with the
Pollution Control Board ("Board') in this matter. Simultaneously with
this Motion, the Complainant and Respondents Marc Realty, Inc. and 55
East Jackson, LLC are filing a Stipulation and Proposal for Settlement
with the Board.
2.
Section 31(c) (2) of the Illinois Environmental Protection
Act ("Act")
,
415 ILCS 5/31 (c) (2)
,
(2002) 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. Section 31(c) (2) provides:
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
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).
3.
No hearing is currently scheduled in the instant case.
4.
The Complainant requests the relief conferred by Section
31(c) (2) of the Act.
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).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of the
State of illino
By:
Office of the Attorney General
Environmental Bureau
188 West Randolph Street,
2
0 th
Fl.
Chicago, IL 60601
312/814-3532
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF' THlE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the State of Illinois,
Complainant,
V.)
PCB 05-103
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 55 E. JACKSON LLC,
a Delaware Limited Liability
Company,
Respondents.
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 Protectibn Agency ('"Illinois EPA"),
MARC REALTY,
INC. and 55 E. JACKSON LLC ("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
the evidence and testimony which would be introduced 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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
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, Respondent agrees to be bound by the Stipulation and
Board Order and not to contest their validity in any subsequent
proceeding to implement or enf orce their terms.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and
of the parties consenting hereto pursuant to the Illinois
Environmental Protection Act ("Act"), 415 ILCS 5/1 et
seq.
(2
002)
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.
III. STATEMENT OF FACTS
A.
Parties
1.
On November 30, 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
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
request of the Illinois EPA, pursuant to Section 31 of the Act,
415 TLCS 5/31(2002), 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
TLCS 5/4 (2002).
3.
At all times relevant to the Complaint, Respondent Marc
Realty, Inc. was and is an Illinois corporation that is
authorized to transact business in the State of Illinois.
Respondent 55 EAST JACKSON, L.L.C., was and is an Illinois
limited liability company in good standing.
B.
Site Description
1.
Respondent MARC REALTY, INC., at all times relevant to
the Complaint in this matter, has operated and managed an office
building located at 55 East Jackson Street, Chicago, Cook County,
Illinois ("facility').
Respondent 55 EAST JACKSON, L. L. C., owned
the facility.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count I:
Air pollution, in violation of Section 9(a) of
the Act, 415 ILCS 5/9(a) (2002).
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
Count II:
Failure to comply with National Emnissions
Standards for Hazardous Air Pollutants, in
violation of Section 9.1(d) of the Act, 415 ILCS
5/9.1(d) (2002), and 40 C.F.R.
§
61.145(c) (1) &
(6) (2002); and, 40 C.F.R.
§
61.150(b) (2002).
D.
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 Respondent does not affirmatively admit the
allegations of violation within the Complaint and referenced
within Section III.C herein, and this Stipulation shall not be
interpreted as including such admission.
E.
Compliance Activities to Date
Respondent took steps necessary to achieve compliance
shortly after their observation.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent, and any officer, director, agent,
or employee of the Respondent, as well as any successors or
assigns of the Respbndent.
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,
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
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 Respondent 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 Cc) of the Act, 415 ILCS 5/33 Cc) (2002)
,
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
S
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
emissions, discharges or deposits resulting from
such pollution source; and
S.
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 mismanagement of asbestos can result in
the public being exposed to levels of airborne asbestos that may
threaten human health.
2.
The facility that is the subject of the Complaint has social
and economic value.
3.
The facility that is the subject of the Complaint is
suitable to the area in which it is located.
4.
Complying with the requirements of the Act and the Board
Regulations is both technically practicable and economically
reasonable.
5.
Respondent achieved compliance by abating and encapsulating
the asbestos prior to recommencing renovation activities.
VII. CONSIDERATION OF SECTION 42(h) FACTORS
Section
42(h)
of the Act,
415 TICS 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:
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
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
"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 state as follows:
1.
The Complainant alleges that the Respondent failed to
comply with the asbestos NESHAP regulations and provisions of the
Act and Board rules as alleged in the Complaint.
The violations
were observed on July 25, 2003 and resolved that day.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
2.
Respondent was 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.
The penalty obtained negates any economic benefit
accrued as a result of the violations.
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of Fifteen Thousand Dollars
($15,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
Prior alleged violations were the subject of a previous
Board case, and an accepted stipulation and proposal for
settlement (People of the State of Illinois v. Marc Realty, Inc.,
11 East Adams St.ITJTJC and Roberts Environmental Control, Inc.,
PCB 04-100).
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a
supplemental environmental project.
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Fifteen Thousand Dollars ($15,000.00) within thirty (30) days
from the date the Board adopts and accepts this Stipulation. The
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
Respondent stipulates that payment has been tendered to
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
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer
Identification Number (FEIN) shall appear on the check. A copy
of the certified check, money order or record of electronic funds
transfer and any transmittal letter shall be sent to:
Christopher P. Perzan
I
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2 0
th
Floor
Chicago, Illinois 60601
2.
Pursuant to Section 42(g) of the Act, 415 TLCS 5/42(g)
(2002), interest shall accrue on any payment not paid within the
time period prescribed above at the maximum rate allowable under
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003
(2002)
.
Interest on any unpaid payment shall begin to accrue
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, Respondent may
be reached at the following address:
Gerald Lee lNudo
Marc Realty LLC
55 E. Jackson Street
Suite 500
Chicago, IL 60604
4.
In the event of default of this Section VIlILA, the
Complainant shall be entitled to all available relief including,
but not limited to, reasonable costs of collection and reasonable
attorney's tees.
D.
Future Use
Notwithstanding any other language in this Stipulation to
the contrary, and in consideration of the mutual promises and
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
conditions contained in this Stipulation, including the Release
from Liability contained in Section VIIT.F, below, the Respondent
hereby agrees that 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 promulgated thereunder for all
violations alleged in the Complaint in this matter, for purposes
of Section 39(a) and (i) and/or 42(h) of the Act, 415 ILCS
5/39(a) and(i) and/or 5/42(h) (2002).
Further, Respondent agrees
to waive any rights to contest, in any subsequent enforcement
action or permit proceeding, any allegations that these alleged
violations wer e adjudicated.
E.
Cease and Desist
The Respondent shall cease and desist from future violations
of the Act and Board Regulations that were the subject matter of
the Complaint as outlined in Section III.C ("Allegations of Non-
Compliance") of this Stipulation.
F.
Release from Liability
In consideration of the Respondent's payment of the
$15,000.00 penalty, to Cease and Desist as contained in Section
VIII.E and upon the Pollution Control Board's acceptance and
approval of the terms of this Stipulation and Proposal for
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
Settlement, the Complainant releases, waives and discharges the
Respondent from any further liability or penalties for 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 November 30, 2004.
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.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
G.
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 Respondent's facility which is the subject of this
Stipulation, at all reasonable times for the purposes of carrying
out inspections.
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.
J.
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.
2.
Respondent agrees 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.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
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 Respondent 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
competeht jurisdiction to be inconsistent with state or federal
law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
WHEREFORE, Complainant and Respondent 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/
Asbestos Litigation Division
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY.:
1 .~
'~
DATE:
2/40
ROBERT A. MESSINA
Chief Legal Counsel
MARC REALTY, INC.
55 EAST JACKSON, LLC
BY:
DATE:
/0
Q.
.I,0y
Name:
4e-AtO
~
,tz
Title:
0,
4/'14#,96/z
15
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached
Stipulation and Proposal for Settlement with Respondents Marc Realty,
Inc. and 55 E. Jackson, LLC, and Motion for Relief from Hearing
Requirement, by depositing the same in the United States Mail, postage
fully prepaid, upon the following persons:
William Seith
631 E. Butterfield Road
Suite 315
Lombard, IL 60148
Dated: November 14, 2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 14, 2005
