ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
ex ref . LISA MADIGAN, Attorney
)
General of the State of Illinois,
)
Complainant,
)
V .
)
PC13 05-180
(Enforcement-Air)
ACI ENVIRONMENTAL CORPORATION, an
)
Illinois corporation, and ASBESTOS
)
CONTROL, INC ., an Illinois
)
corporation,
)
Respondents .
)
NOTICE OF FILING
TO :
See attached Service List
PLEASE TAKE NOTICE that on April 26, 2006, we filed with the Illinois Pollution
Control Board, Complainant's Motion to Request Relief from Hearing Requirement and
Stipulation and Proposal for Settlement, true and correct copies of which are attached hereto and
hereby served upon you
.
Respectfully submitted,
LISA MADIGAN
Attorney General
State of Ill'n
Evan J. McGinle
Assistant Atto
General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
312.814.3153
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
SERVICE LIST
Peter G. Swan
Emalfarb, Swan & Bain
440 Central Avenue
Highland Park, IL 60035
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
ex. rel. LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
Complainant,
)
vs .
)
No. PCB 05 - 180
(Enforcement - Air)
ACI ENVIRONMENTAL CORPORATION,
)
an Illinois Corporation, and ASBESTOS
)
CONTROL, INC., an 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
:
I
.
On March 29, 2005, a Complaint was filed with the Pollution Control
Board ("Board") in this matter . On April 26, 2006, a Stipulation and Proposal for
Settlement of this matter was filed with the Board
.
2 .
Section 31(c)(2) of the Illinois Environmental. Protection Act ("Act"), 415
ILCS 5/31(c)(2), (2004), 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 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,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
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
.
Other than a status hearing which is set for April 27 ; 2006, there are no
other hearings set for this matter.
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), (2004)
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the State of Illinois
B
EVAN J.MCG
Y
Assistant Atto
eneral
Environmental Bureau
188 W. Randolph St., 20th Fl .
Chicago, Illinois 60601
(312) 814-1511
312.814.3153
Dated: April 24, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
ex rel. Lisa Madigan, Attorney )
General of the State of Illinois
)
Complainant,
)
PCB 05-180
(Enforcement - Air)
ACI ENVIRONMENTAL CORPORATION, an )
Illinois corporation, and ASBESTOS
)
CONTROL Inc ., an Illinois Corporation,
)
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 Protection Agency ("Illinois EPA"),
and ACI ENVIRONMENTAL CORPORATION and ASBESTOS CONTROL, INC
.,
("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 the parties have entered into this Stipulation, nor any
of the facts stipulated herein, shall be introduced into evidence in any other proceeding regarding
1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26 2006
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 enforce 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 .
(2004)
.
IL
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 March 29, 2005, 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(2004), against
the Respondents .
2
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 26-,=
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 (2004)
.
3
.
At the time of the alleged violations, Respondent ACI ENVIRONMENTAL
CORP. is an Illinois corporation and is located at 501 W . Carboy, Mt. Prospect, Illinois. At the
time of the of the alleged violations, Respondent ASBESTOS CONTROL,
INC . is an Illinois
corporation at 145 Weiler Road, Arlington Heights, Cook County, Illinois
.
B .
Site Description
In August 2003, the Respondents engaged in a renovation in the boiler room of the Oak
Meadows Golf Course Country Club, located at 900 Wood Dale Road, Addison, DuPage County,
Illinois ("facility") .
C .
Allegations of Non-Compliance
Complainant contends that the Respondents have violated the following provisions of the
Act and Board regulations :
Count I
:
Emission of asbestos constituting air pollution, in violation of Section
9(a) of the Act, 415 ILCS 5/9(a) (2004) and 35 111 . Adm. Code 201 .141
.
Count II :
Failure to comply with National Emission 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. ยง 61.145(c) (3) & (6) (2004) .
D.
Admissions of Violations
The Respondents represent that they have 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 Respondents do not
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
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
On or about August 15, 2003, the Illinois EPA received a Notification of Demolition and
Renovation that indicated a renovation was to occur at the facility starting on August 26, 2003
.
The notification indicated that the asbestos removal contractor was ACI Environmental
Corporation. The notification further indicated that regulated asbestos containing material of 80
linear feet from pipes and 600 square feet from surface area were to be removed from the facility
.
As of the date of the filing of this Stipulation, the asbestos renovation project that was the
subject of Respondents' August 15, 2003 Notification of Demolition and Renovation has been
completed, and all asbestos-containing waste material and asbestos contamination found on site
has been removed and disposed of
.
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
.
4
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 26, 2006
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, or the federal asbestos NESHAP
.
VI .
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-
COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5133(c)(2004), 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 welfaree 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
I .
Complainant contends that human health and the environment were threatened by
Respondents' violations of regulations governing the renovation, handling and/or disposal of
asbestos-containing material ("ACM") . However, the threat of ACM contamination was abated
by the proper cleanup and disposal of the ACM
.
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
2
.
The asbestos abatement work which Respondents performed is of social and
economic benefit, and when done in accordance with applicable regulations and statutes, is
beneficial to human health and the environment, as well
.
3 .
The suitability of Respondents' operations to this location is not at issue in this
matter.
4 .
It is both technically practicable and economically reasonable for Respondents to
follow work practices and procedures to properly handle, remove and dispose of RACM and
ACWM in compliance with all applicable provisions of the Act, the Board Air Pollution
Regulations and 40 CFR Part 63, Subpart M
.
5 .
Respondents have subsequently complied with the Act by undertaking actions that
adequately address the Illinois EPA's technical concerns
.
VII
.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2004), 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
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
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
:
A significant amount of RACM was disturbed during the Respondents'
renovation of the facility, exposing any and all workers to carcinogenic asbestos fibers
.
However, the removal area was under containment. The Illinois EPA inspection conducted an
inspection of the facility on August 27, 2003, while the asbestos renovation and removal work
was ongoing. On or about November 21, 2003, Respondents' counsel submitted copies of
worker licenses, daily logs, clearance analyses and waste shipment records for the project to
Illinois EPA
.
2
.
Complainant asserts that Respondents did not act diligently in that they failed to
ensure that all RACM was adequately wetted prior to removal,
3
.
The quantifiable economic benefit to the Respondents resulting from their failure
to conduct the renovation project in compliance with the Act, Board Air Pollution Regulations
and asbestos NESHAP was nominal and the penalty obtained includes any economic benefit
received
.
7
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 26, 2006
4 .
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Two Thousand Five Hundred ($2,500 .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 adjudicated cases alleging
violations of the Act, Board Regulations or asbestos NESHAP
.
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
The Respondents shall pay a civil penalty in the sum of Two Thousand Five
Hundred Dollars ($2,500.00) within thirty (30) days from the date the Board adopts and accepts
this Stipulation. The Respondents stipulate that payment has been tendered to Respondents'
attorney of record in this matter in a form acceptable to that attorney. Further, Respondents
stipulate that said attorney has been directed to make the penalty payment on behalf of
Respondents, within thirty (30) days from the date the Board adopts and accepts this Stipulation,
in a manner prescribed below . The penalty amount of $2,500 .00 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. Payment shall be
submitted to :
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer Identification Number
(FEIN), 36-3090607, shall appear on the checks . A copy of the certified checks, money orders or
records of electronic funds transfer and any transmittal letters shall be sent to
:
Evan J. McGinley
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20
th
Floor
Chicago, Illinois 60601
Christopher 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 II-CS 5/42(g) (2004), 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 (2004)
.
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
.
9
following address :
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
3
.
For purposes of payment and collection, Respondents may be reached at the
Michael Wilkin
c/o Wilkin Insulation Co
.
501 West Carboy
Mt. Prospect, IL 60056
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 Compliance
Respondents' Illinois Department of Public Health-issued asbestos contractor licenses
have now lapsed and Respondents agree that they will never again seek to obtain such licensing
from the Illinois Department of Public Health .
C .
Future Use
Notwithstanding any other language in this Stipulation to the contrary, and in
consideration of the mutual promises and conditions contained in this Stipulation, including the
Release from Liability contained in Section VIII .E, 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 (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(2004)
.
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
.
10
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
D .
Cease and Desist
The Respondents shall cease and desist from committing any future violations of the Act,
Board Regulations or the federal asbestos NESHAP that were the subject matter of the
Complaint as outlined in Section M .C ("Allegations of Non-Compliance") of this Stipulation
.
E .
Release from Liability
In consideration of the Respondents' payment of the $2,500 .00 penalty and any specified
costs and accrued interest, completion of all activities required hereunder, to Cease and Desist as
contained in Section VIII .D and upon the Pollution Control Board's acceptance and approval of
the terms of this Stipulation and Proposal for Settlement, the Complainant releases, waives and
discharges the Respondents 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 March 29, 2005. 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 .
11
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 26, 2006
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 (2004), or entity other than the
Respondent .
F.
Enforcement of Board Order
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
.
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.
1 2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
H .
Execution of Document
This document shall become effective only when executed by all parties. This document
may be executed by the parties in one or more counterparts, all of which taken together, shall
constitute one and the same instrument
.
13
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
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/
Asbestos Litigation Division
BY :
-Li
I
AWP -
R OC
Environmental Bureau
Assistant Attorney General
14
DATE :
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 26, 2006
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY :
Chief Legal Counsel
15
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 26, 2006
CERTIFICATE OF SERVICE
I, Evan J. McGinley, an Assistant Attorney General, certify that on this 26 th day of April,
2006, 1 caused to be served by First Class Mail, the foregoing Motion to Request Relief From
Hearing Requirement and Stipulation and Proposal for Settlement 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
.
