BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
1
1
-vs-
1
)
NO. 04-7
4832 S. VINCENNES, L.P., an
1
(Enforcement
-
Air)
Illinois limited partnership, and
)
BATTEAST
CONSTRUCTION COMPANY,
1
INC., an Indiana corporation,
1
1
Respondents.
1
TO: See Attached Service List
(VIA ELECTRONIC FILING)
NOTICE OF FILING
PLEASE TAKE NOTICE that I have filed with the Office of the
Clerk of the Illinois Pollution Control Board today, by
electronic filing, a Motion to Request Relief from Hearing, and a
Stipulation and Proposal for Settlement as to Respondent, 4832 S.
Vincennes, L.P. only, copies of which are attached herewith and
served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY
:
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth
Flr.
Chicago, IL 60601
(312) 814-1511
Date: June 22, 2006
THIS
FILING IS MADE
ON
RECYCLED
PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
1
Complainant,
)
1
-vs-
1
)
No. 04-7
4832 S.
VINCENNES, L.P., an
)
(Enforcement
Illinois limited partnership, and
)
BATTEAST
CONSTRUCTION COMPANY,
)
INC., an Indiana corporation,
1
)
Respondents.
)
Air)
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 fiom the hearing
requirement in the above-captioned matter. In support thereof, the Complainant states as
follows:
1.
On November 6,2003, the First Amended Complaint was accepted for hearing by
the Pollution Control Board ("Board") in this matter. On June 22,2006, a Stipulation and
Proposal for Settlement as to Respondent, 4832 S. Vincennes,
L.P.("Vincennes"), only, was filed
with the Board. The co-Respondent,
Batteast Construction Company, Inc., has previously
entered into a Stipulation which was subsequently accepted by the Board on March 16,2006. If
accepted, the Stipulation and Proposal for Settlement with Respondent Vincennes, will dispose
of the case.
2.
Section
3l(c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
513
1(c)(2),
(2004), allows the parties in certain enforcement cases to request relief fiom the
mandatory hearing requirement where the parties have submitted to the Board a stipulation and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
proposal for settlement. Section 3 1
(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
fiom 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 3
1(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 41 5 ILCS
513 1
(c)(2)(2OO4).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
.
LISAMADIGAN
Attorney General of the
State of Illinois
By:
?&hl%c,ub
PAULA BECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th
F1.
Chicago, Illinois 60601
(312) 814-1511
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
CERTIFICATE OF
SERVICE
I, PAULA
BECKER WHEELER,
an attorney, do certify that I
caused to be served
this
22nd day of June, 2006,
the foregoing
Motion to Request Relief from Hearing, Stipulation and
Proposal
for settlement as to Respondent,
4832 S. Vincennes,
L.P.
only,
and
Notice of Filing upon the persons listed on the attached
Service List by depositing same in an envelope, by first class
postage prepaid, with the United States Postal Service at 188
West Randolph Street, Chicago,
Illinois, at or before the hour of
5:00 p.m.
PAULA
BECKER WHEELER
Date:
June
22,
2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
SERVICE LIST
TO: Mr. Oliver Spurlock.,
Esq./Mr. Gregory Miller
Attorneys for Respondent
%
4832 S. Vincennes, L.P.
9415 South State Street
Chicago,
11.
60619
Mr. Zachary Hamilton
Attorney for Respondent
Batteast
Const. Co., Inc.
3340 E. Forest View Trail
Crete, IL. 60417
Mr. Bradley P.
Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph, Room 11-500
Chicago,
11.
60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
1
PCB
04-07
v.
)
1
(Enforcement
-
Air)
4832
S. VINCENNES, L.P., an
Illinois limited partnership, and
)
BATTEAST
CONSTRUCTION COMPANY,
1
INC.,
an Indiana corporation,
)
Respondents.
1
STIPULATION AND PROPOSAL FOR SETTLEMENT AS TO 4832 S. VINCENNES,
L.P. ONLY
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
4832
S.
VINCENNES, L. P.
,
('\Respondent"
or
l1Vincennesl1)
,
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
herein, shall be introduced into evidence in any other proceeding
regarding the claims asserted in the First Amended Complaint
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
except as otherwise provided herein. If the Board approves and
enters this Stipulation, Respondent Vincennes 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
N), 415 ILCS 5/1 et seq.
(2004).
11.
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.
11.
STATEMENT OF FACTS
A.
Parties
1.
On November 6, 2003, the Board accepted the First
Amended Complaint for hearing that 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 Respondent.
2.
The Illinois EPA is an administrative agency of the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
State of Illinois, created pursuant to Section 4 of the Act, 415
ILCS 5/4 (2004).
3.
At all times relevant to the First Amended Complaint,
Respondent was an Illinois limited partnership.
B.
Site Description
1.
At all times relevant to the First Amended Complaint,
Respondent owned the property at the location of 4832 S.
Vincennes, Chicago, Cook County,
Illinois("Site"), wherein
renovation activities occurred. The building is a residential
four story brick apartment building, containing sixty
seven(67)
units.
2.
At all times relevant to this Complaint, the
co-
Respondent,
Batteast Construction Company, Inc. ("Batteast")
owned and operated a construction company that performed
renovation activities at the site pursuant to a contract with
Vincennes.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act, Board regulations, and NESHAP
regulations:
Count I
:
Air Pollution, in violation of Section
9(a) of
the Act, 415 ILCS
5/9(a)
(2002), and 35
Ill. Adm.
Code 201.141.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
Count
11:
Failure to Inspect and to Follow Proper Emission
Control Procedures, in violation of Section
9.1
(d)
(1) of the Act, 415 ILCS
5/9.l
(d)
(1)
(2002),
'and 40 CFR
61.145
(a),
(c)
(I), and
(c)
(6)
.
D.
Admission of Violations
Respondent Vincennes admits to the allegations in the First
Amended Complaint filed in 'this matter and referenced within
Section
1II.C herein.
V. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondent, and any officer, director, agent,
or employee of the
~espondent,
as well as any successors or
assigns of the Respondent. 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,
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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33 (c) of the Act, 415 ILCS
5/33
(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:
the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
the social and economic value of the pollution
source
;
the suitability or unsuitability of the pollution
source to the area in which it is located,
including the question of priority of location in
the area involved;
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
any subsequent compliance.
In response to these factors, the parties state the
following:
1.
Human health and the environment were threatened by the
Respondent's violations.
2.
There is social and economic benefit to the business of
the Respondent.
3.
The renovation of the property at the site was suitable
for the area in which it occurred.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
4.
Inspection of the premises and following the proper
procedures for asbestos abatement would prevent threatened air
pollution and would be both technically practicable and
economically reasonable.
5. Respondent has subsequently complied with the Act and
the Board Regulations.
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:
the duration and gravity.
of the violation;
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;
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;
the amount of monetary penalty which will serve to
deter
furtheq 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;
the number, proximity in time, and gravity of
previously adjudicated violations of this Act by
the respondent;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
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 Respondent failed to sufficiently inspect the site
for asbestos-containing materials prior to beginning construction
activities at the site, and violated provisions of the
regulations concerning the handling and disposal of the
asbestos-
containing materials once they were discovered. The violations
began on or around December of 2001 and were resolved by March
2.
Respondent was diligent in attempting to come back into
compliance with the Act, Board regulations and applicable federal
regulations, soon after the Illinois EPA notified it of its
noncompliance.
3.
The economic benefit of noncompliance is minimal as the
costs of compliance were only delayed a short time before coming
into full compliance. Further, the penalty obtained negates any
economic benefit accrued.
4.
Complainant has determined, based upon the specific
facts of this matter, that a penalty of $2,500.00 will serve to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
deter further violations and aid in future voluntary compliance
with the Act and Board regulations.
5.
To
Complainant's knowledge, Respondent has no
previously adjudicated violations of the Act.
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
Two Thousand Five Hundred Dollars
($2,500.00)
upon receipt of
the Board Order adopting and accepting this Stipulation. The
Respondent stipulates that payment has been tendered to
Respondent's attorney of record in this matter in a form
acceptabl-e to that attorney. Further, Respondent stipulates that
said attorney has been directed to make the penalty payment on
behalf of Respondent, upon receipt of the Board Order adopting
and accepting 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
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:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth
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 ILCS 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
3.
For purposes of payment and collection, Respondent may
be reached at the following address:
Mr. Oliver
Spurlock
Attorney for Respondent
1327 W Washington
Suite 105
Chicago, I1 60607
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 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
.Dl
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 First Amended 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,
Respondent agrees to waive any rights to
conte'st, in any
subsequent enforcement action or permit proceeding, any
allegations that these alleged violations were adjudicated.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
C.
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 First Amended Complaint as outlined in Section
1II.C
("Allegations of Non-Compliance") of this Stipulation.
D.
Release
from
Liability
In consideration of the Respondent's payment of the
$2,500.00 penalty and any specified costs and accrued interest,
and its commitment to Cease and 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 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 First Amended Complaint herein. The release set forth above
does not extend to any matters other than those expressly
specified in Complainant's First Amended Complaint accepted by
the Board for filing on November 6, 2003. 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;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
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
E.
empl
Respondent.
Right of Entry
In addition to any other authority, the Illinois EPA, its
oyees 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
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.
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.
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
competent jurisdiction to be inconsistent with state or federal
law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect.
G.
Execution of Document
This Stipulation and Proposal for Settlement shall become
effective only when executed by all parties and accepted by the
Board. This Stipulation may be executed by the parties in one or
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
more counterparts, all of which taken together, shall constitute
one and the same instrument.
(THE REST OF THIS PAGE IS LEFT INTENTIONALLY BLANK)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
WHEREFORE, Complainant and Respondent
4832
S. VINCENNES,
L.P.,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:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
ROBERT A. MESSINA
Chief Legal Counsel
4832
S. VINCENNES, L.P.
DATE
:
DATE
:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
WHEREFORE, Complainant and Respondent
4832
S. VINCENNES,
L.P.,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
Litiqation
Divisio'n
DATE
:
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
fl
BY:
-
"
ROBERT A:
MESSINA
Chief Legal Counsel
4832
S.
VINCENNES, L.P.
BY:
Name
:
DATE:
0
b
2,
0
DATE
:
Title:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 22, 2006
