BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS
)
by
LISA MADIGAN Attorney General
)
of the State of Illinois
)
)
Complainant,
)
PCB No. 07-144
)
v.
)
)
(Enforcement- Air)
MICK MORFEY, individually and
)
WILLIAM KNAUER, individually
)
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE N OTI CE that on the 11 th day of February, 2009, I filed with the Clerk of
the Illinois Pollution Control Board a Stipulation and Proposal for Settlement with Respondent
Mick Morfey
Only and a Motion to Request Relief from Hearing Requirement as to Respondent
Mick Morfey
Only, copies of which are attached hereto and are hereby served upon you.
DATE: February 11,
2009
PEOPLE
OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
BY,
---~~SYL'VEstf(S~
Assistant Attorney General
Environmental Bureau
North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814-2087
ssylvester@atg.state.itus
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, February 11, 2009
James Macchitelli, Esq.
Counsel for Respondent Mick Morfey
7247 W. T ouhy Ave.
Chicago, IL
60631
Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street, 11th Floor
Chicago, IL
60601
Dennis Brown
Assistant Counsel
Illinois
EPA, Division of Legal Counsel
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794-9276
SERVICE LIST
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MAD I GAN Attorney General
)
of the State of Illinois
)
)
Complainant,
)
)
v.
)
)
MICK MORFEY, individually and
)
WILLIAM KNAUER, individually
)
)
Respondents.
)
PCB No. 07-144
(Enforcement- Air)
MOTION TO REQUEST RELIEF FROM HEARING REQUIREMENT
AS TO RESPONDENT MICK MORFEY ONLY
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
as to Respondent Mick Morfey Only. In support
thereof, the Complainant states
as follows:
1.
On June 15,2007, a Complaint was filed with the Illinois Pollution Control Board
("Board") in this matter. On February 11, 2009, a Stipulation and Proposal for Settlement with
Respondent Mick Morfey
was filed with the Board in this matter.
2.
Section 31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/31
(c)(2) (2006), effective August 1, 1996, 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.
3.
Section 31(c)(2) of the Act, 415
5/31(c)(2)
(2006), provides as follows:
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,
the Board shall deny the request for relief from a hearing
and shall hold a hearing
in accordance with the provisions
of subdivision (1).
4.
No hearing is currently scheduled in the instant case.
5.
The Complainant requests the relief conferred by Section 31(c)(2) of the Act, 415
ILCS
5/31(c)(2) (2006) .
. 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) (2006).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
BY'_~~~_
Assistant Attorney General
Environmental Bureau
North
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(312) 814.2087
ssylvester@atg.state.il.us
______________________________________ __
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN Attorney General
of the State of Illinois
Complainant,
v.
MICK MORFEY, individually and
WILLIAM KNAUER, individually
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
PCB No. 07-144
(Enforcement- Air)
STIPULATION AND PROPOSAL FOR SETTLEMENT
WITH RESPONDENT MICK MORFEY.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
Respondent Mick Morfey ("Morfey") only, ("Parties to the Stipulation and Proposal for
Settlement") 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), the Board's Air
Pollution Regulations, and the National Emission Standards for Hazardous Air Pollutants
("NESHAP") for asbestos, 40 CFR 61.140,
et. seq.,
as alleged in the Complaint except as otherwise
provided herein.
It is the intent of the Parties to this Stipulation and Proposal for Settlement
("Parties to this Stipulation") that
it
be a final adjudication of this matter.
1
1. STATEMENT OF FACTS
A.
Parties
1.
On June 15, 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
Morfey
and William Knauer for alleged violations that occurred at barracks buildings 266 and
267 ("Buildings"), situated within the former Savanna Army Depot, Savanna, Carroll County,
IllmOlS
'
. ("S'
lte.
")
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).
B.
Allegations of Non-Compliance
Complainant contends that Morfey has violated the following provisions of the Act, Board
Air Pollution Regulations,
and the NESHAP for asbestos:
Count I:
Count II:
Count III:
Count IV:
Air Pollution: Violation of Section 9(a) of the Act, 415 ILCS 5/9(a) (2006)
and Section 201.141 of the Board's Air Pollution Regulations, 35 Ill. Adm.
Code
201.141;
Failure to Inspect and to Submit Complete and Accurate Notification of
Demolition and Renovation: Violation of 9.l(d) of the Act, 415 ILCS
5/9.l(d), and Sections 61. 145(a) and (b) of the NESHAP for asbestos, 40
C.F.R. 61. 145 (a) and (b);
Failure to Remove and Contain RACM in Compliance with NESHAP
Requirements: Violation
of Section 9.l(d) of the Act, 415 ILCS 5/9.l(d),
and Sections 61. 145(c)(1), (c)(2), (c)(6) and (c)(8) and 61.150(a)(1)(iii), (iv)
and (v) of the NESHAP for asbestos, 40 C.F.R. 61. 145(c)(l), (c)(2), (c)(6)
and (c)(8) and 61. 150(a)(1)(iii), (iv) and (v);
Improper Disposal of Regulated Asbestos-Containing Materials: Violation
of Section 9.l(d) of the Act, 415 ILCS 5/9.l(d), and Section 61. 150(b) of
the NESHAP for asbestos, 40 C.F.R. 61.150(b);
2
Electronic Filing - Received, Clerk's Office, February 11, 2009
Count V:
Count VI:
Failure
to Pay Asbestos Fees: Violation of Section 9. 13 (a) of the Act, 415
ILCS
5/9. 13 (a); and
Open Burning of Refuse: Violation of Section 9(c) of the Act, 415 ILCS
5/9(c).
C.
Admission of Violations
Morfey admits to
the violations alleged in the Complaint filed in this matter and
referenced within Section I.B herein.
II. APPLICABILITY
This Stipulation shall apply to and be binding upon the Parties to the Stipulation. This
Stipulation may be used against Morfey 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
violations 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
3
Electronic Filing - Received, Clerk's Office, February 11, 2009
5.
any subsequent compliance.
In response to these factors, the Parties to the Stipulation state the following:
1.
The impact to the public resulting from Morfey's failure to comply with the work
practice standards
of the asbestos NESHAP in connection with regulated building renovation
activities resulted
in the emission of asbestos fibers, a known carcinogen, which threatened human
health and the environment. In addition, the Illinois EPA and the public were not privy to
information that is important to monitoring of hazardous material in Illinois, because no
notification of activities was received by the Illinois EPA, prior to the commencement of asbestos
removal activities
at the Site.
2.
The Buildings at the Site, which are the subject of the Complaint, have social and
economic value.
3.
The Buildings at the Site, which are the subject of the Complaint, are suitable to
the area in which they are located.
4.
Complying
with the applicable provisions of the Act, the Board's Air Pollution
Regulations
and the NESHAP for asbestos was both technically practicable and economically
reasonable.
5.
Complainant states that asbestos remediation activities to ensure proper removal
and disposal of all regulated asbestos-containing waste material at the Buildings, resulting from
improper renovation activities at each of the two Buildings, have been completed.
IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2006), provides as follows:
4
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
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 to the Stipulation state as follows:
1.
The duration of the violations that are the subject of the Complaint are alleged by
Complainant to have occurred on or before January 13, 2006 and continued through at least
October 30, 2006. The gravity of the alleged violations is enhanced, due to the hazardous nature
of the regulated asbestos-containing materials ("RACM") that was disturbed during Respondents'
activities
at the Site, exposing, at a minimum, Respondents to carcinogenic asbestos fibers.
5
Electronic Filing - Received, Clerk's Office, February 11, 2009
---~----------~~
2.
Morfey failed to act diligently in this matter, as evidenced by improperly disturbing,
handling and disposing of dry, friable RACM at the Site. By failing to retain a contractor trained
in the requirements of the NESHAP for asbestos and by improperly disturbing, handling and
disposing of dry, friable RACM at the Site, Morfey caused, threatened or allowed the discharge or
emission of asbestos, a known human carcinogen for which there is no known safe level of
exposure, into the environment.
3.
Morfey realized
an undetermined economic benefit for non-compliance by avoiding
and/or delaying costs necessary to properly conduct asbestos removal and waste disposal activities
in compliance with the NESHAP for asbestos, the Act, and Board Air Pollution Regulations.
4.
Complainant states that a civil penalty payment of One Thousand Dollars
($1,000.00) will serve to deter further violations by Morfey and to otherwise aid in enhancing
voluntary compliance with the Act, Board Regulations, and the NESHAP for asbestos by Morfey
and other persons similarly subject to the Act, Board Regulations, and the NESHAP for asbestos.
5.
To Complainant's knowledge, Morfey has had no previously adjudicated violations
of the NESHAP for asbestos, the Act, and Board regulations thereunder.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
V. TERMS OF SETILEMENT
A.
Penalty Payment
1.
Morfey shall pay a civil penalty in the sum of One Thousand Dollars ($1,000.00)
within thirty (30) days from the date the Board adopts and accepts this Stipulation.
6
B.
Interest and Default
1.
If Morfey fails to make any payment required by this Stipulation on or before the
date upon which the payment is due, Morfey 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, interest shall accrue on any penalty amount
owed by Morfey not paid within the time prescribed herein. Interest on unpaid penalties shall
begin to accrue from
the date such are due and continue to accrue to the date full payment is
received. Where partial payment is made on any penalty amount that is due, such partial payment
shall be first applied
to any interest on unpaid penalties 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
P~otection
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 and case number 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:
Stephen J. Sylvester
Environmental Bureau
Illinois Attorney General's
Office
69 W. Washington St., Suite 1800
7
-- --------
-------"
Chicago, Illinois 60602
D.
Future
Compliance
1.
This Stipulation in no way affects the responsibilities of Morfey to comply with any
other federal, state or local laws or regulations, including but not limited to the NESHAP for
asbestos,
the Act and the Board Regulations.
2.
Morfey shall cease and desist from future violations of the Act, Board Air
Pollution Regulations, and the NESHAP for asbestos that were the subject matter of the
Complaint.
E.
Release from Liability
In consideration of Morfey's payment of the $1,000.00 penalty and his commitment to
Cease and Desist as contained in Section V.D above and upon the Board's approval of this
Stipulation,
the Complainant releases, waives and discharges Respondent, Morfey only, from any
further liability
or penalties for the violations of the Act, Board Air Pollution Regulations, and the
NESHAP for asbestos 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 June 15, 2007. The Complainant reserves, and this Stipulation is without
prejudice to, all rights of the State of Illinois against Morfey 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
8
Electronic Filing - Received, Clerk's Office, February 11, 2009
d.
liability or claims based on the Morfey'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 may have against any person, as defined by Section
3.315 of the Act, 415 ILCS 5/3.315, or entity other than Morfey
F.
Enforcement and Modification 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.
G.
Execution of Stipulation
The undersigned representatives for each Party to the 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 the Stipulation request that the Board adopt and accept the
foregoing Stipulation and
Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS THE ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW]. DUNN, Chief
Environmental Enforcement/
As
DOUGLAS P. SCOTT, Director
Illinois Environmental
Protection Agency
Envi
enta
~::;au~~~:---RBYV::-----Riob-B~E~-r1I=f.~~
Assistant Attorney General
Chief Legal Counsel
DATE'_k~~~~1____
DATE
~Z:~~~'L
___ _
MICKMORFEY
BY:
DATE: ___________________ _
N ame: ____________________ _
Title: ___________________ _
10
02/02/2009 12:04
18152732058
SAV SWISS COLONY
PAGE 10
WHEREFORE, the Parties to the Stipulation request that tbe Board adopt and accept the
foregoing
Stipulation and Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLlNOIS
LISAMADIGAN
Attorney General
State ofIllinoi.s
MATTHEW J. DUNN, Chief
Environm.ental Enforcement!
Asbestos Litigation
Division
.BY:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Asgjstant Attorney General
DATE:. ______________ _
MICKMORFEY
BY:
Title:
.----------------
THE ILLINOIS ENVJRONMENTAL
PROTECTION
AGENCY
DOUGLAS P.
SCOTT,
Director
Illinois Environrnental
Protection Agency
BY:
--------------~-----
ROBERT
A.
MESSINA
Chief Legal Counsel
DATE: ______________ _
DATE:
c2-d-o
2
10
CERTIFICATE OF SERVICE
I, STEPHEN J. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this 11th day
of February, 2009, the foregoing Stipulation and Proposal for
Settlement with Respondent Mick Morfey
Only, Motion to Request Relief from Hearing
Requirement
as to Respondent Mick Morfey Only and Notice of Filing upon the persons listed on
the Service List by depositing same in an envelope, first class postage prepaid, with the United
States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before the hour of 5:00
p.m.
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---
