DEC
242008
STATE
OF
lWNOS
OFFICE
OF THE
ATI’ORNEY
GENERAL
Oflutton
Control
Board
STATE
OF
ILLINOIS
Lisa
Madigan
X1”I’ORNEY
GENERAL
December
22, 2008
John T. Therriault,
Assistant
Clerk
Assistant
Clerk of
the Board
Illinois Pollution
Control Board
James R.
Thompson Center,
Ste. 11-500
100 West
Randolph
Chicago,
Illinois 60601
Re:
People v. Vithalbhai
Pate!
PCB
No. 07-131
Dear Clerk:
Enclosed
for filing please
find the
original and ten
copies
of a
Notice
of
Filing,
Motion
for
Relief
from Hearing Requirement
and
Stipulation and
Proposal
for Settlement in
regard to
the
above-captioned
matter.
Please
file
the originals
and return
file-stamped copies
to me in
the
enclosed envelope.
Thank
you for your cooperation
and
consideration.
Very
truly yours,
nJ.JanasiH
Environmental
Bureau
500
South Second
Street
Springfield,
Illinois 62706
(217)
782-9031
SJJ/pj
k
Enclosures
500 South Second Street,
Springfield,
Illinois 62706
• (217) 782-1090
• TTY;
(877)
844-5461
• Fax;
(217) 782-7046
100 West Randolph
Street,
Chicago,
Illinois
60601
• (312)
814-3000
• TTY; (800) 964-3013
• Fax;
(312) 814-3806
flfl1
‘,In
Tii;,-
conl • 1,cIQ t2o cion
‘V’Tv. /Q7Th 47 C2Th
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f1 O\ )fl
BEFORE
THE
ILLiNOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE
STATE
OF
)
ILLINOIS,
Complainant,
vs.
)
PCBNo.
)
(Enforcement
- Air)
VITHALBHAI
PATEL,
Respondent.
NOTICE
OF
FILING
To:
Bill
Wimmer
Attorney
at Law
2
Park
Place
Professional
Center
Belleville,
IL
62226
PLEASE
TAKE
NOTICE
that
on
this
date
I mailed
for
filing
with
the
Clerk
of the
Pollution
Control
Board
of the
State
of
Illinois,
a
MOTION
FOR
RELIEF
FROM
HEARING
REQUIREMENT
and
STIPULATION
AND
PROPOSAL
FOR
SETTLEMENT,
copies
of
which
are
attached
hereto
and
herewith
served
upon
you.
Respectfully
submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
LISA
MADIGAN,
Attorney
General
of
the
State
of Illinois
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
STPE’1.
JANASIE
Assistant
Attorney
General
Environmental
Bureau
500
South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
December
22,
2008
1
CERTIFICATE
OF
SERVICE
I
hereby
certify
that
I did
on August
19, 2008,
send
by
First
Class
Mail,
with
postage
thereon
fully
prepaid,
by
depositing in a
United
States
Post
Office
Box
a
true
and
correct
copy
of the
following
instruments
entitled
NOTICE
OF
FILING, MOTION
FOR
RELIEF
FROM
HEARING
REQUIREMENT
and
STIPULATION
AND
PROPOSAL
FOR
SETTLEMENT:
To:
Bill
Wimmer
Attorney
at
Law
2 Park
Place
Professional
Center
Belleville,
IL
62226
and
the
original
and ten
copies
by
First
Class
Mail
with
postage
thereon
fully
prepaid
of the
same
foregoing
instrument(s):
To:
John
T.
Therrault,
Assistant
Clerk
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
Suite
11-500
100
West
Randolph
Chicago,
Illinois
60601
A
copy
was
also
sent
by
First
Class
Mail
with
postage
thereon
fully
prepaid
to:
Carol
Webb
Hearing
Officer
Illinois
Pollution
Control
Board
1021
North
Grand
Avenue
East
Springfield,
IL
62794
StepheJ
Assist’ntttorr’ey
General
This
filing
is
submitted
on
recycled
paper.
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE OF
ILLINOIS,
)
Complainant,
vs.
)
PCB
No.
07-1
31
)
(EnforcementtEVD
VITHALB
HAl
PATEL,
)
CLERKS
OFFIGE
Respondents.
)
1E
OF
ILUNOS
MOTION
FOR RELIEF
FROM
HEARING
RE
MENntroI
Board
NOW
COMES
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
(“Act”),
415
ILCS
5131(c)(2)
(2006),
moves
that
the
Illinois
Pollution
Control
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)
(2006).
In
support
of
this
motion,
Complainant
states as
follows:
1.
The
parties
have
reached
agreement
on
all
outstanding
issues
in this
matter.
2.
This
agreement
is
presented
to
the
Board in
a
Stipulation
and
Proposal
for
Settlement,
filed
contemporaneously
with
this
motion.
3.
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)
(2006).
1
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)
(2006).
Respectfully
submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
LISA
MADIGAN
ATTORNEY
GENERAL
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Liti
ation
D
I
n
BY:___
SHN
J/JiNASIE
Environmental
Bureau
Assistant
Attorney
General
500
South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
December
22,
2008
2
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE STATE
OF ILLINOIS,
)
Complainant,
v.
PCB
No.
(EnforceñJ
OFFGE
VITHALBHAI
PATEL,
)
DEC
200B
Respondent.
)
STErB
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
VITHALBHAI
PATEL (“Respondent”),
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.
This
stipulation
of facts is
made
and agreed
upon for
purposes
of
settlement
only and
as a
factual
basis
for the Board’s
approval
of
this Stipulation
and
issuance
of relief.
None
of the
facts
stipulated
herein shall
be introduced
into evidence
in
any
other
proceeding
regarding
the
violations
of
the Illinois
Environmental
Protection
Act
(“Act”),
415
ILCS
5/1 et
seq.
(2006), and
the Board’s
Regulations,
alleged
in
the Complaint
except
as
otherwise
provided
herein.
It is
the intent
of the
parties
to
this
Stipulation
that
it be
a final
adjudication
of
this
matter.
I
I. STATEMENT
OF FACTS.
A.
Parties to
the Stipulation
1.
On
June 8,
2007, 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
(2006), 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 ILCS
5/4 (2006).
3.
At all
times
relevant
to the Complaint,
Respondent
was the owner and/or
operator
of a Howard
Johnson Express
Inn (“facility”)
located at
301
North
Bluff
Road, Collinsville,
Madison County,
Illinois.
4.
On
November
5,
2003,
the Respondent was
conducting
the demolition of the
office
portion
of the facility.
The Respondent ceased
work
at the request
of
the
Illinois EPA
and
retained Farmer
Environmental
Services to
thoroughly
inspect
for the presence
of asbestos. It
was determined that
over 200 square
feet of
sprayed on ceiling
material contained
asbestos.
A
proper
abatement
of the office
portion
was subsequently
accomplished.
5.
On
July
21 and 22, 2005,
the
Illinois EPA
inspected
the facility at
the
request
of
Koman
Properties.
Walls throughout the
hallways and
within
the
72 individual
rooms had been
damaged
and the
copper plumbing lines
had been
removed.
Several
elbows
had
been
cut
from
the
pipes
and
discarded
on
the floor.
Thermal pipe
insulation
suspected
to be asbestos
containing was
present on
elbows as
well
as discarded on the
floor after
having been stripped
from
the
plumbing
lines.
Three samples of the
insulation
were
subsequently
analyzed and
determined
to
contain 10% to 15%
asbestos.
The Illinois
EPA estimated
that
the
scrapped
plumbing
lines had
contained 576
linear feet of RACM.
2
B.
Allegations
of Non-Compliance
Complainant
contends
that the Respondent
has
violated the following provisions
of the
Act and the regulations
on National Emission
Standards
for
Hazardous Air Pollutants
(“NESHAP”)
for asbestos in
that Respondent:
Count I:
Section
9.1(d) of the
Act, 415 ILCS 5/9.1(d) (2006),
40
CFR
61.145(a), 40 CFR 61.145(b)(1).
Prior to the November
5, 2003
demolition described
in the Complaint,
Respondent
did not thoroughly
inspect the affected facility
or part of the facility
where the demolition
activities
occurred
for the presence of asbestos.
The
Respondent
also did
not
provide
written notification
to the Illinois EPA prior to
the
commencement of
demolition activities
at the
facility.
Count II:
Section
9.1(d) of the Act, 415 ILCS
5/9.1(d)
(2006),
40 CFR
61.145(a),
40 CFR 61.145(b)(1), 40 CFR
61.145(c)(6), 40 CFR
61.1 50(b)(1).
Prior
to
the
demolition described in the Complaint
on or about June 10, 2005,
and
on
dates thereafter better known
to the
Respondent,
the Respondent failed
to thoroughly inspect the affected
facility or part of the
facility
where
the
demolition occurred for
the
presence
of asbestos prior to the commencement
of
the demolition.
The Respondent also did
not
provide written notification
to the
Illinois EPA prior
to the commencement of demolition activities.
The Respondent
also failed to collect, contain and
deposit as soon
as
practicable all RACM and
asbestos-containing waste materials generated during the removal
at a site
permitted to accept such waste.
C.
Non-Admission of Violations
The Respondent neither admits nor denies the violation(s) alleged in the Complaint filed
in this matter and
referenced within
Section lll.C herein.
D.
Compliance
Activities
to
Date
Midwest Asbestos Abatement Company
commenced
remediation
of the facility on
August 15, 2005 and the remediation was completed on September 12, 2005. Upon completion
of the
remediation the building was demolished.
3
II. APPLICABILITY
This Stipulation shall
apply to and be binding upon the Complainant,
the Illinois EPA
and
the
Respondent,
and any officer, director, agent, or employee
of
the Respondent,
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. 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 for all violétions alleged in the
Complaint
in this matter, for
purposes of Sections
39 and
42 of
the
Act, 415
ILCS
5/39
and 42
(2006).
Ill.
IMPACT ON
THE PUBLIC RESULTING FROM
ALLEGED
NON-COMPLIANCE
Section 33(c)
of the Act, 415 ILCS 5/33(c) (2006),
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.
4
In response to
these factors, the parties
state
the
following:
1.
During
the
June 2005 asbestos
disturbance
described in the Complaint,
and on
dates thereafter
better
known
to
the Respondent,
a
significant
amount
of
dry,
friable regulated
asbestos-containing
material (“RACM”)
was disturbed
and
improperly
handled without
any
use
of emission
control
procedures. Anyone
that entered the
hotel portion
of the facility
was
potentially exposed
to the asbestos
fibers.
2.
Any quantifiable economic
benefit
was
nominal.
3.
Operation
of
the facility
was suitable for
the area in which
it occurred.
4.
An inspection
prior to the
November
2003
demolition
and
the
June
2005
asbestos
disturbance,
written notification
to IEPA
and proper remediation
prior
to
commencement of
the November
2003
demolition
and the June
2005 asbestos
disturbance
were
all technically
practicable and
economically
reasonable.
5.
Respondent
has
subsequently
complied with the Act
and the Board
Regulations.
IV.
CONSIDERATION
OF
SECTION
42(h) FACTORS
Section
42(h) of the
Act,
415 !LCS
5!42(h)(2006),
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;
5
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
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.
Respondent failed
to
conduct
an
inspection prior to commencement of the
November 2003
demolition of the office portion of the former Howard Johnson’s motel,
which
was
remediated
on or about November
20, 2003
and
subsequently demolished. Prior
to
the
disturbance
of
piping
covered with asbestos in the hotel portion of
the
former
Howard
Johnson’s,
Respondent
failed
to
provide notice
to
the Illinois EPA thereby
hindering
the
Agency’s
ability
to
gather compliance
information
and
perform timely inspections.
Furthermore,
during the
June 2005
asbestos disturbance described in
the Complaint anyone that entered the
facility
without personal
protective equipment was
potentially
exposed to
asbestos fibers.
Midwest
Asbestos Abatement
Company commenced
remediation of the facility pursuant to a
plan
approved by
the Illinois EPA on August 15, 2005
and
the rernediation was
completed
on
September
12, 2005.
2.
Respondent
showed no diligence
in timely complying with the Act and asbestos
NESAHP
regulations in that it
failed
to
perform an asbestos
inspection, failed to provide written
6
notification
to
Illinois EPA, and failed
to
properly conduct asbestos removal activities prior
to
renovation and demolition
activities.
3.
The Respondent’s economic
benefit of noncompliance was nominal.
4.
Complainant has determined, based
upon the specific facts of this matter, that
a
penalty of Thirty Thousand Dollars
($30,000.00)
will serve
to
deter further violations
and aid in
future
voluntary
compliance with
the Act and Board regulations.
5.
To Complainant’s knowledge, Respondent has
no
previously adjudicated
violations of the Act.
6.
There
was
no
self-disclosure
in
this
matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil
penalty
in the sum of
Thirty
Thousand
Dollars
($30,000.00)
within thirty (30) days from the date the Board adopts and accepts this Stipulation.
B.
Interest and
Default
1.
If the
Respondent fails to make any payment
required
by this Stipulation on or
before the date
upon
which
the payment is due, the
Respondent shall be in default and the
remaining unpaid
balance of the penalty, plus any accrued
interest, shall
be due
and owing
immediately.
In the
event of default, the Complainant shall be
entitled
to
reasonable
costs of
collection,
including
reasonable attorney’s fees.
2.
Pursuant to Section 42(g) of
the
Act,
415
ILCS
5/42(g) (2006), interest shall
accrue
on any payment
not paid within the time period prescribed
herein. Interest
on
unpaid
7
penalties
shall
begin
to
accrue
from the date such
are due
and
continue to accrue until
the date
full payment
is
received. When
partial payment is
made on any
penalty
amount that
is
due,
such partial payment
shall be first
applied
to any
interest on unpaid payment
then
owing.
C.
Payment
Procedures
All
payments
required by
this Stipulation
shall be made by certified
check or money
order
payable
to the
Illinois
EPA for deposit
into
the
Environmental
Protection Trust
Fund
(“EPTF”).
Payments
shall be sent by
first
class mail
and
delivered to:
Illinois
Environmental
Protection Agency
Fiscal
Services
1021
North
Grand Avenue
East
P.O. Box
19276
Springfield, IL
62794-9276
The
name, case number
and the
Respondent’s
federal
tax
identification
numbers shall
appear
on the face
of the
certified
check or money
order. A copy
of the certified check
or money order
and
any transmittal
letter
shall
be
sent to:
Environmental
Bureau
Illinois
Attorney General’s
Office
500
South
Second Street
Springfield,
Illinois 62706
D.
Future
Compliance
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.
E.
Release from
Liability
In
consideration
of the Respondent’s
payment
of the
$30,000.00
penalty, completion
of
all activities
required hereunder,
and
upon the
Board’s
approval
of
this
Stipulation,
the
Complainant
and
the
Illinois EPA
releases,
waives
and
discharges
the Respondent
from any
further
liability or
penalties for the
violations of
the Act and
Board Regulations that
were the
8
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 June 8,
2007.
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.
liabilityfor
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.
F.
Enforcement
of
Stipulation
Upon the
entry of
the Board’s
order approving
and
accepting
this Stipulation,
that
Order
is
a binding
and
enforceable
order
of the Board
and
may
be enforced
as such
through any
and
all
available
means.
C.
Execution
of Stipulation
The
undersigned
representatives
for each
party to
this Stipulation
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.
9
WHEREFORE,
the
parties
to
this Stipulation request
that
the
Board adopt
and accept
the foregoing
Stipulation and Proposal for Settlement as
written.
PEOPLE OF THE
STATE OF ILLINOIS,
FOR
THE ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY
LISA MADIGAN
Attorney General
State
of Illinois
DOUGLAS P. SCOTT,
Director
Illinois
Environmental Protection
Agency
MATTHEW J. DUNN,
Chief
Environmental
Enforcement!
Asbestos
Litigation Division
BY:
BY:
THOMAS
DAVIS, Chief
ROBERT
. MESSINA
Environmental
Bureau
Chief Legal Counsel
Assistant
Attorney
General
DATE:
/
DATE:
VITHALBHAI
PATEL
BY:
DATE:
VITHALBHAI
PATEL
Respondent
10
