•

RECEIVED

CLERKS OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FEB 17200k

PEOPLE OF THE STATE OF ILLINOIS

)

STATE OF ILLINOIS

ex

rel.

LISA

MADIGAN,

Attorney

)

poHut~on

Control Board

General

of

the

State

of

Illinois,

Complainant,

v.

)

No.

PCB

04-4

(Enforcement

-

Air)

BEST—WAY

CONSTRUCTION

&

REMEDIATION,

INC.,

an Illinois corporation; and

CLINTON

6 L.L.C.,

an Illinois

limited liability company,

Respondents.

NOTICE OF

FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that today we have filed with the

pollution Control Board the following Stipulation and Proposal

for Settlement and Request for Relief from the Hearing

Requirement On behalf of the People of the State of Illinois,

copies of which is attached and hereby served upon you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

BY:

_________

JOEL J.

STERNSTEIN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago, Illinois

60601

(312)

814-6986

DATE: February 17,

2004

THESE FILINGS ARE SUBMITTED ON RECYCLED PAPER

---

•

SERVICE LIST

Mr.

Brad Halloran,

Esq.

Hearing

Officer

Illinois

Pollution

Control

Board

James

R.

Thompson

Center

100 W. Randolph Street,

Suite 11-500

Chicago,

IL 60601

Mr.

Chris Pressnall,

Esq.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield,

Illinois 62794-9276

Mr. James Brusslan,

Esq.

Levenf±eldPearlstein

2 North LaSalle Suite 1300

Chicago,

IL 60602

Mr. Matthew Connelly

Mr. Cory Anderson

Connelly,

Roberts & McGivney

1 North Franklin,

Suite 1200

Chicago,

IL 60606

---

RECE~VED

CLERKS OFFICE

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAR~EB

172004

PEOPLE OF THE STATE OF ILLINOIS

STATE

OF ILLINOIS

ex

rel.

LISA

MADIGAN,

Attorney

)

Pollution

Control

Board

General

of the State of Illinois,

Complainant,

v.

)

No. PCB 04-4

(Enforcement

-

Air)

BEST-WAY CONSTRUCTION

&

REMEDIATION,

INC.,

an Illinois corporation; and

CLINTON

6 L.L.C.,

an Illinois

limited liability company,

Respondents.

MOTION FOR RELIEF FROM HEARING REQUIREMENT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

by LISA

MADIGAN, Attorney General of the State of Illinois, and pursuant

to Section 31(c) (2)

of the Illinois Environmental Protection Act

(IlActTT)

,

415 ILCS 5/31(c) (2)

(2004), moves that the Illinois

pollution Control Board

(“Board”)

grant the parties

in the above-

captioned matter relief from the hearing requirement imposed by

Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2004)

.

In

support of this motion,

Complainant states as follows:

1.

The Complaint

in this matter alleges violations

of the

Board’s air pollution regulations

in addition to Sections

9(a),

9(b),

9.8(b), and 39.5(b) (6)

of the Act,

415 ILCS 5/9(a),

9(b),

9.8(b),

and 39.5(b) (6)

(2004).

2.

Complainant is filing this Motion and a Stipulation and

Proposal for Settlement with the Board.

3.

The parties have reached agreement on all outstanding

issues in this matter.

4.

This agreement is presented to the Board in a

Stipulation and Proposal for Settlement which is

filed

---

contemporaneously with this Motion.

5.

All parties agree that a hearing on the Stipulation and

proposal for Settlement

is not necessary, and respectfully

request relief from such a hearing as allowed by Section 31(c)

(2)

of the Act,

415 ILCS 5/31(c) (2)

(2004)

WHEREFORE,

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

hereby requests that the Board grant this motion for relief from

the hearing requirement

set forth in Section 31(c) (1)

of the Act,

415 ILCS 5/31(c) (1)

(2004)

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

BY:

~

Y5~I~I~

~

JOEL J. STERNSTEIN

•

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

20th Floor

Chicago,

Illinois

60601

(312)

814-6986

DATE: February 17,

2004

---

CLERK’S OFFI

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

FEB 17200

PEOPLE OF THE STATE OF ILLINOIS

)

TEOF ILLINOIS

ex

rel.

LISA

MADIGAN,

Attorney

)

~

COflt~’0I

Board

General

of

the

State

of

Illinois,

)

Complainant,

)

v.

)

No.

PCB

04-4

)

(Enforcement

-

Air)

BEST-WAY

CONSTRUCTION

&

)

REMEDIATION,

INC.,

an Illinois corporation; and

)

CLINTON

6 L.L.C., an Illinois

)

limited liability company,

)

Respondents.

STIPULATION AND PROPOSAL FOR

SETTLEMENT

by LISA

MADIGAN,

Respondents, BEST-WAY CONSTRUCTION & REMEDIATION,

INC.,

Illinois corporation

(“Stipulation”)

to the Illinois Pollution Control Board

for approval.

facts contained herein is agreed to only for the purposes of

settlement.

This

Stipulation

shall

be

null

and

void

unless

the

Board

approves

and

disposes

of

this

matter

on

each

and

every

one

of

the

terms

and

conditions

of

the

settlement

set

forth

herein.

1

---

I.

JURI

SDICTION

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.

(2002)

II.

legally bind them to it.

III.

STATEMENT

A.

PARTIES

1.

The subject Complaint was brought by the Attorney

General pursuant to the

terms and provisions of Section

3.

of the

Act, 415 ILCS

5/3.

(2002)

.

.

•

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

.Eest-Way

was

an

Illinois

corporation

conducting

asbestos

abatement

activities.

.

.

.

.

2

---

4.

5.

South Clinton Street, Chicago, Cook County,

Illinois

(“Facility”)

B.

SOURCE DESCRIPTIONS

1.

Sometime on or prior to January 5, 2000,

or

on

other

removal of asbestos at the Facility.

2.

On or about January

5, 2000, Complainant alleges that

at the Facility which had been removed with spud bars.

tiles were dry and had been crumbled,

ground, and/or pulverized

rendering them friable.

.

3.

Complainant alleges that subsequent testing of those

floor tiles .indicated that they contained anywhere from 5

to 20

chrysolite asbestos.

4.

On

or

about

January

28,

2000,

Complainant

alleges

that

there

was

a

trail

of

floor

tiles

and

tile

crumbs

from

the

ground

of

the

storage

waste

dumpster

to

the

loading

dock

at

the

Facility.

.

.

3

---

5.

By causing or allowing

dry

friable asbestos floor tiles

to be deposited,

uncontrolled, on floors at the Facility,

Complainant alleges that Respondents caused, threatened and

allowed asbestos fibers to be released into the environment.

C.

VIOLATIONS

This Stipulation is intended to resolvethe allegations in

the Complaint filed in this matter.

The Complaint alleges

violations of the Act and of the Board’s Air Pollution

Regulations outlined as follows:

COUNT

I

Air pollution in violation of Section 9(a) of the

Act, 415 ILCS 5/9(a) (2002), and Section 201.14.

of

the Board Regulations, 35 Ill. Adm Code 201.141;

COUNT

II

Violation of asbestos emission control procedures.

in violation of Section 9.1(d) (1)

of the Act, 415

ILCS 5/9.1(d) (1)

(2002)

and Sections 61.145

(c) (3)

and

(c) (6) of the asbestos National Emission

Standards for Hazardous Air Pollutants

(“NESHAP”),

40 CFR 61.145

(c) (3) and

(c) (6);

COUNT III Failure to follow the asbestos

NESHAP

renovation

notification requirements in violation of Section

9.1(d)

of the Act, 415 ILCS 5/9..(d)(1)

(2002),

and Section 61.145(b)

of the NESHAP.,

40 CFR

61.145(b); and

COUNT IV

Improper disposal of asbestos in violation of

Section 9.1(d) (1) of the Act, 415 ILCS

5/9.1(d) (1) (2002), and Section 61.150(b)

of the

asbestos NESHAP,

40 CFR 61.150(b).

IV.

APPLICABILITY

This Stipulation shall apply to and be binding.upon

Complainant and Respondents, and any agent, director,

officer,

4

---

employee or servant of Respondents,

as well as Respondents’

successors and assigns.

Respondents shall not raise as a defense

to

any

enforcement

action

taken

pursuant

to

this

settlement

the

failure of their agents,

directors, officers, servants or

employees

to

take

such

action

as

shall

be

required

to

comply

with

the

provisions

of

this

settlement.

ADMISSION/DENIAL

OF

VIOLATIONS

Respondents neither admit nor deny the allegations in the

complaint.

VI.

Fu~xu~E

PLANS

OF

COMPLIANCE

Respondents shall comply with the approved procedures to

control

asbestos

emissions

during

asbestos

removal.

Respondents

shall

also

comply

with

the

Act,

the

Board’s

regulations,

•and

the

asbestos

NESH~P.

VII.

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

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

as

follows:

1.

Complainant contends that the impact to the public as

a result of the allegations against Respondents in the Complaint

was that Respondents allowed asbestos fibers to be released into

the

environment

both

inside

and

outside

of

the

Facility.

2.

The

parties

agree

that

Respondents’

operation

is

of

social

and

economic

value.

3.

The

parties

agree

that

the

Facility

is

suitable

to

the

area

where

it

is

located.

.

4.

The

parties

agree

that

compliance

with

the

requirements

of

the

Act,

Board

regulations,

and

the

asbestos

NESHAP

is

both

technically

practicable

and

economically

reasonable.

5.

The

parties

agree

that

Respondents

subsequently

complied

with

the

Act,

Board

regulations,

and

the

asbestos

NESHAP.

6

---

VIII.

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

subdivisions’

(a)

,

(b)

(1)

,

(b)

(2)

,

(b)

(3),

or

(b)

(5)

of

this

Section,

the

Board

is

authorized to consider any

matters or 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 violator 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

violator

because

of

delay

in

compliance

with

requirements;

4.

the

amount

of

monetary

penalty

which

will

serve

to

deter

further

violations

by

the

violator

and

to

otherwise aid in enhancing voluntary compliance with

this

act

by

the

violator

and

other

persons

similarly

•

subject

to

the

Act;

and

5.

the

number, proximity in time, and gravity of

•

previously

adjudicated

violations

of

this

Act

by

the

violator.

In

response

to

these

factors

the

parties

state

as

follows:

1.

Complainant

alleges

that

the

gravity

of

the

alleged

violations

is

significant

in that the Act, the applicable Board

Regulations,

and the asbestos NESHAP were not complied with which

resulted

in

air

pollution..

The

parties

agree

that

the

duration

is

equally

significant,

as

the

alleged

violations

began

sometime

on

or

prior

to

January

5,

2000

and

continued

throughout

January

7

---

of

2000.

2.

Complainant

alleges

that

Respondents

did

not

initially

exercise

due

diligence

in

complying

with

the

Act,

the

Board’s

regulations,

and

the

asbestos

NESHAP.

However,

Respondents

subsequently

cleaned

up

the

asbestos

contamination

at

the

Facility.

3.

Complainant alleges that Respondents derived economic

benefits by not using the proper and approved method for asbestos

removal.

4.

The

parties

agree

that

an

eleven

•thousand

dollar

($11,000.00)

civil

penalty

is

adequate

to

deter

Respondents

from

future violations.

5.

Complainant is unaware of any previously adjudicated

violations by Respondent Clinton

6.

•

6.

Complainant and Respondent Best-Way entered into a

Consent

Order

in

the

Circuit

Court

of

Cook

County

on

May

28,

2003

regarding

an

asbestos

remediation

project

at

1500

Skokie

Boulevard in Northbrook,

Illinois.

Ix.

TERMS

OF

SETTLEMENT

1.

Respondents shall jointly and severally pay a civil

penalty

of

eleven-thousand

dollars

($11,000.00)

within

thirty

(30) days of the date of entry of this Stipulation and Proposal

for

Settlement.

Payment of eleven-thousand dollars

($11,000.00)

8

---

shall be made by certified check or money order payable to the

“Illinois

Environmental

Protection

Agency”

and

designated

to

the

Environmental

Protection

Trust

Fund.

The

certified

check

or

money

order

shall

include

Respondents’

federal

employer

identification

numbers

and

be

sent

by

first

class

mail

to:

Illinois Environmental Protection

Agency

Fiscal Services Section

1021

North

Grand

Avenue

East

P.O.

Box

19276

Springfield,

Illinois

62794-9276

A

copy

of

the

check

shall

be

sent

to:

Joel

Sternstein

Assistant Attorney General

Environmental Bureau

188

West

Randolph

Street

20th

Floor

Chicago,

Illinois 60601

On

the

checks

and/or

money

orders,

Respondents

shall

include

the

case

name

and

case

number.

2.

For

the

purposes

of

collection,

inquiries

can

be

addressed to Respondent Best-Way’s attorney at:

Matthew

Connelly

Connelly

Roberts

&

McGivney

LLC

One N. Franklin St. Suite 1200

Chicago,

IL

60606

Inquiries

can

also

be

addressed

to

Respondent

Clinton

6’s

attorney

at:

James

D.

Brusslan

.

Levenfeld

Pearlstein

.

2 N. LaSalle Suite #1300

Chicago,

IL

60602

3.

Pursuant

to

Section

42

(g)

of

the

Act,

415

ILCS

5/42

9

---

(g)

(2002),

interest

shall

accrue

on

any

amount

not

paid

within

the time prescribed herein at the maximum rate allowable under

Section 1003

(a) of the Illinois Income Tax

Act,

35

ILCS

5/1003

(a)

(2002)

a.

Interest on unpaid amounts shall begin to accrue

from

the

date

the

penalty

payment

is

due

and

continue

to

accrue

to

the

date

payment

is

received.

b.

Where

partial

payment

is

made

on

a

payment

amount

that

is

due,

such

partial

payment

shall

be

first

applied

to

any

interest on unpaid amounts then owing.

c.

All interest on amounts owed Complainant shall be

paid by certified checks payable to the “Illinois Environmental

Protection Agency” for deposit in the Environmental Protection

Trust

Fund and

delivered

in

the

same

manner

as

described

in

Section

IX.1

herein.

d.

In

the

event

that

Respondents

fail

to

make

all

or

part

of

the

payment

set

forth

in Section IX.~1, Respondents shall

be

in

default

and

the

unpaid

balance

owed,

plus

any

accrued

interest,

shall

become

due

and

owing

Complainant

immediately.

4.

Respondents

shall

in

the

future

operate

in

compliance

with

the

Act,

Board

Regulations,

and

the

asbestos

NESHAP.

5.

Respondents

shall

cease

and

desist

from

further

violations

of

the

Act,

Board

regulations,

and

the

asbestos

NESHAP,

including, but not limited to, those Sections of the Act,

10

---

Board regulations, and the asbestos NESHAP that were the subject

matter

of

the

Complaint

as outlined in Section III.C of this

Stipulation.

x.

COMPLIANCE

WITH

OTHER

LAWS AND

REGULATIONS

This Stipulation .and Proposal for Settlement in no

way

affects Respondents’ responsibility to comply with any federal,

state or local laws and regulations.,

including but not limited to

the Act, 415 ILCS 5/1

et seq.

(2002),

and the Board Regulations,

35

Ill.

Adm.

Code

Subtitles

A

through

H.

XI.

•

.

•

FUTURE

USE

Notwithstanding

any

other

language

in

this

Stipulation

and

proposal for Settlement to the contrary,

this Stipulation and

Proposal

for

Settlement

may

be

used

against

Respondents

in

any

subsequent enforcement action or permit

proceeding

as

evidence

of

a

past

adjudication

of

violation

of

the

Act,

the

Board

Regulations, and the asbestos NESHAP.

•

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

Facility,

which

is

the

subject

of

this

Stipulation

11

•

---

arid Proposal for Settlement,

at all reasonable times for the

p~irposes of

carrying

out

environmental 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.

RELEASE

FROM

LIABILITY

In consideration of Respondents’ payment of the $11,000.00

penalty, Plaintiff releases, waives and discharges Respondents

from any further liability or penalties for violations of the

Act,

Board Regulations, and asbestos

NESHAP

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

Plaintiff’s

Complaint

filed

on

July

7,

2003.

Plaintiff

reserves,

and

this.

Stipulation

is:

without prejudice to,

all rights of

the

State of Illinois against 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

Respondents’

failure

to

•

12

---

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

(2002), or entity other than

Respondents.

WHEREFORE,

Complainant

and

Respondents

request

that

the

Board adopt and accept the foregoing Stipulation and Proposal for

Settlement as written.

13

---

AGREED:

FOR

COMPLAINANT:

PEOPLE

OF

THE

STATE

OF

ILLINOIS

LISA

MADIGAN

Attorney

General,

State

of

Illinois

MATTHEW J.

DUNN,

Chief

Environmental

Enforcement\Asbestos

Litigation

Division

By:

ILLINOI

S

ENVIRONMENTAL

PROTECTION

AGENCY

By:

J

ESPH~’E. SVÔ~ODA

•

hief Legal Counsel

FOR

RESPONDENTS:

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By:

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Assistant

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Clinton

6

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14

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CERTIFICATE OF SERVICE

I,

JOEL J.

STERNSTEIN,

an Assistant Attorney General,

certify that on the 17th day of February 2004,

I caused to be

served by First Class Mail the foregoing Stipulation and Proposal

for Settlement,

Request for Relief from the Hearing Requirement,

and Notice of Filing to the parties named on the attached Service

list, by depositing same in postage prepaid envelopes with the

United States Postal Service located at 100 West Randolph Street,

Chicago, Illinois 60601.

JO L J

STERNSTEIN

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IPCB\settlement-notice-relief-hearing

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