PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN, Attorney
General of the State of Illinois,
IVLARC REALTY, INC., an Illinois
corporation, 11 EAST
ADAMS,
L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC., an Illinois
corporation,
RECEIVED
CLERK’S OFFICE
MAY 25 200k
STATE OF ILUNOIS
Pollution Control Board
PCB 04-100
(Enforcement-Air)
TO:
NOTICE OF
T T. T~T(~!
Michael J. Quinn
Seyfarth Shaw, LLP
55 East Monroe
Suite 4200
Chicago, Illinois 60603
Edward L. Filer
Darren R. Bertram
FagelHaber LLC
55 East Monroe,
40th
Floor
Chicago, Illinois 60603
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street,
11th
Floor
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today filed with the Office of the
Clerk of the Pollution Control Board the Stipulation and Proposal
for Settlement with Respondents Marc Realty, Inc. and 11 East
Adams, LLC, and Motion for Relief from Hearing Requirement a copy
of which is herewith served upon you
Dated: May 25, 2004
Office of the Attorney General
Environmental Bureau
188 W. Randolph Street, ~ Floor
Chicago, Illinois 60601
312 814-3532
~stopeP.~za~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Complainant
v
Respondents.
RECE~VE~CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAY 252004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATEOFILLINOIS
ex rel.
LISA MADIGAN, Attorney
)
Pollution Control Board
General of the State of Illinois,
Complainant,
v.
)
PCB 04-100
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 11 EAST ADAMS, L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC., an Illinois
corporation,
Respondents.
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH
RESPONDENTS MARC REALTY, INC. AND 11 EAST ADAMS, LLC
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney General of the State of Illinois, on her own motion, and at
the request of the Illinois Environmental Protection Agency (“Illinois
EPA”), and Respondents, MARC REALTY, INC. and 11 EAST ADAMS, L.L.C.
(“Settling Respondents”), do hereby submit this Stipulation and
Proposal for Settlement. The parties agree that the Complainant’s
statement of facts contained herein is agreed to only for the purposes
of settlement. The parties further state that neither the fact that a
party has entered into this stipulation, nor any of the facts
stipulated herein, shall be admissible into evidence, or used for any
purpose in this, or any other proceeding, except to enforce the terms
hereof, by the parties to this agreement. Notwithstanding the
previous sentence, this Stipulation and Proposal for Settlement, and
any Illinois Pollution Control Board (“Board”) order accepting same,
may be used as evidence of a past adjudicated violation of the Act as
1
alleged herein, pursuant to Section 42(h) of the Illinois
Environmental Protection Act (“Act”), 415 ILCS 5/42 (h) (2002), in
determining appropriate civil penalties for any future violations of
the Act. This Stipulation may also be used in any permitting action
for the purposes of Section 39(i) of the Act, 415 ILCS 5/39(i) (2002).
This Stipulation and Proposal for Settlement 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.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and of
the parties consenting hereto pursuant to the Act, 415 ILCS 5/1
et
seq.
(2002)
.
II.
AUTHOR IZAT ION
The undersigned representatives for each settling party certify
that they are fully authorized by the party whom they represent to
enter into the terms and conditions of this Stipulation and Proposal
for Settlement and to legally bind them to it.
III.
APPLICABILITY
This stipulation and Proposal for Settlement shall apply to, and
2
be binding upon, the Complainant and Settling Respondents, and any
officer, agent, employee or servant of Settling Respondents, as well
as the Settling Respondents’ successors and assigns. Settling
Respondents shall not raise as a defense to any enforcement action
taken pursuant to this settlement the failure of its officers,
directors, agents, servants or employees to take such action as shall
be required to comply with the provisions of this settlement. The
terms of this Stipulation and Proposal for Settlement and the release
contained herein are applicable only to the signatories of this
Stipulation and Proposal for Settlement.
IV.
STATEMENT OF FACTS
1. 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), and is charged,
inter alia,
with the duty of enforcing the
Act.
2. Respondent MARC REALTY, INC.., at all times relevant to the
Complaint in this matter, was and is an Illinois corporation in good
standing. Respondent 11 EAST ADAMS, L.L.C., was and is an Illinois
limited liability company in good standing.
3. Respondent MARC REALTY, INC., at all times relevant to the
Complaint in this matter, has operated and managed an office building
located at 11 East Adams Street, Chicago, Cook County, Illinois
(“facility”)
.
Respondent 11 EAST ADAMS, L.L.C., owned the facility.
4. Settling Respondents contracted for a renovation of the
3
fourth floor of the facility on August 7, 2002. At that time, the
Illinois EPA conducted an inspection to determine compliance with
regulations applicable to the management of asbestos during renovation
activities. Some of the other floors of the building were occupied by
tenants at the time of the renovation.
5. The Illinois EPA observed the presence of possible asbestos
containing materials on the ceiling in the form of spray-on
fireproofing on the fourth floor during the inspection. Disturbed
asbestos containing materials were also observed on the floor.
Samples taken by the Illinois EPAduring the inspection established
the presence of asbestos. The Illinois EPA determined the existence
of violations of provisions of the Environmental Protection Act and
the National Emissions Standards for Hazardous Air Pollutants.
6. ROBERTS ENVIRONMENTAL CONTROL, INC. (“ROBERTS”) was present
on the fourth floor at the time of the inspection installing a
heating, ventilation and air conditioning system.
7. After the inspection, Settling Respondents provided for the
asbestos abatement of the fourth floor before renovation work
recommenced and performed asbestos cleaning activities on other floors
of the facility.
V.
VIOLATIONS
The Complaint alleges the following violations:
Count I: AIR POLLUTION Violation of Section 9(a) of the Act, 415
ILCS 5/9(a) (2002), and 35 Ill. Adm. Code 201.141. Respondents
4
caused, threatened or allowed air pollution in the State of Illinois.
Count II: FAILURE TO COMPLY WITH NATIONAL EMISSIONS STANDARDS FOR
HAZARDOUS AIR POLLUTANTS Violation of Section 9.1(d) of the Act and
40 C.F.R. § 61.145(a), (b), (c)(l), (6) & (8) (2002); and, 40 C.F.R.
§ 61.150(b) (2002).
VI.
NATURE OF RESPONDENTS’ OPERATIONS
Settling Respondents own and operate the facility, an office
building. Settling Respondents manage said property and lease space
to various tenants. Settling Respondents also provide for upkeep and
occasional renovation of the facility and other properties.
VII.
EXPLANATION OF PAST FAILURES TO COMPLY
1. On September 13, 2002, the Illinois EPA issued a violation
notice to Respondent MARC REALTY, INC. and ROBERTS advising them of
violations observed at the facility during the inspection. The
alleged violations included the failure to notify the Illinois EPA of
a regulated renovation activity, failure to sufficiently remove
asbestos prior to conducting the renovation activity, failure to keep
asbestos containing materials wet, failure to provide properly trained
personnel, failure to timely dispose of asbestos containing waste
material and causing, threatening or allowing air pollution. The
alleged violations included violations of provisions of the
5
Environmental Protection Act and the National Emissions Standards for
Hazardous Air Pollutants.
2. 11 EAST ADAMS, L.L.C. submitted a response to the violation
notice on October 31, 2002. In its response, 11 EAST ADAMS, L.L.C.
expressed regret over the incident and asserted that the contractor
and its employees that caused the release were experienced in handling
asbestos and were aware of its presence. The Illinois EPA issued a
rejection of a compliance commitment agreement to 11 EAST ADAMS,
L.L.C. by letter of November 15, 2002. ROBERTS did not respond to the
violation notice.
3. On November 13, 2003, the Illinois EPA issued a notice of
intent to pursue legal action against both MARC REALTY, INC. and
ROBERTS.
VIII.
FUTURE PLANS OF COMPLIANCE
Settling Respondents shall comply with all requirements of the
Act, 415 ILCS 5/1
et seq.
(2002)
,
and the Illinois Pollution Control
Board Regulations, 35 Ill. Adm. Code Subtitles A through H.
IX.
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
6
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 questions
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. The impact to the public resulting from Respondents’
noncompliance was that the Illinois EPA and the public were not privy
to information that is important to the control of air pollution in
Illinois due to the failure to file the appropriate notification prior
to asbestos activities. Mismanagement of asbestos can also result in
the public being exposed to levels of airborne asbestos that may
threaten human health.
2. The facility that is the subject of the Complaint has social
and economic value.
3. The facility that is the subject of the Complaint is
suitable to the area in which it is located.
4. Complying with the requirements of the Act and the Board
7
Regulations is both technically practicable and economically
reasonable.
5. Settling Respondents ultimately achieved compliance, by
abating the asbestos prior to recommencing renovation activities and
cleaning other areas of the facility.
x.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42 (h) of the Act, 41.5 ILCS 5/42(h) (2002)
,
provides as
follows:
In determining the appropriate civil penalty
to be imposed under subdivisions (a), (b) (1),
(b) (3), or (b) (5) of 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 the
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 violator and to otherwise aid in
enhancing voluntary compliance with
8
this Act by the respondent 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
respondent.
6. whether the respondent voluntarily
self-disclosed, in accordance with
subsection (i) of this Section, the
non-compliance to the Agency;
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. Complainant contends that the violations that are the
subject of the Complaint occurred over the period of at least one
week.
2. Complainant contends that the Settling Respondents were not
diligent in initially failing to provide for an adequate asbestos
abatement prior to conducting renovation activities at the facility.
Subsequent to the August 7, 2002 inspection Settling Respondents took
all appropriate actions to abate the asbestos ‘in the renovation area
and clean asbestos from areas outside the renovation area. Settling
Respondents spent in excess of $450,000.00 in said activities.
3. Complainant contends that the Settling Respondents accrued
an economic benefit by delaying proper abatement of asbestos materials
prior to the renovation activities. The penalty of $55,000.00 is
9
greater than the economic benefit arising from the violations.
4. The settling parties believe that a civil penalty of
$55,000.00 will deter Settling Respondents from committing further
violations, and will aid in enhancing voluntary compliance by Settling
Respondents and others similarly subject to the Act.
5. The State is not aware of any other adjudicated violations
of the Act by Settling Respondents.
6. Respondent did not meet the requirements of Section 42(h) (6)
of the Act, 415 ILCS 5/42(h) (6) (2002).
7. Respondent is not performing a Supplemental Environmental
Project pursuant to Section 42(h) (7) of the Act, 415 ILCS
5/42(h) (7) (2002).
XI.
TERMS OF SETTLEMENT
1. The Settling Respondents represent that they have
entered into this Stipulation and Proposal for Settlement for the
purpose of settling and compromising disputed claims without
having to incur the expens.e of contested litigation. By entering
into this Stipulation and Proposal for Settlement and complying
with its terms, the Settling Respondents do not affirmatively
admit the allegations of violation within the Complaint, and this
Stipulation and Proposal for ‘Settlement shall not ‘be interpreted
as including such admission.
2. Settling Respondents shall pay a civil penalty of $55,000.00
into the Environmental Protection Trust Fund within thirty (30) days
10
,
into the Environmental Protection Trust Fund within thirty (30) days
after the date the Board adopts a final opinion and order approving
this Stipulation and Proposal for Settlement. Settling Respondents
shall be jointly and severally responsible for this payment.’ Payment
shall be made by certified check or money order, payable to the
Illinois Environmental Protection Agency, designated to the Illinois
Environmental Protection Trust Fund, and shall be sent by first class
mail to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794
A copy of the check shall be sent to:
Christopher P. Perzan
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, 20th Floor
Chicago, IL 60601
Settling Respondents shall write the case caption and number, and its
Federal Employer Identification Number (“FEIN”),
—-
,
upon the
certified check or money order.
3. For purposes of payment and collection, the Settling
Respondents may be reached at the following address:
11 E. Adams L.L.C.
c/o Marc Realty
200 W. Jackson Blvd., Suite 1200
Chicago, Illinois 60606-6941
Attn: Mr. John Laika
4. Pursuant to Section 42(g) of the Act, 415 ILCS
4/42 (g) (2002), interest shall accrue on any amount not paid within the
time period prescribed herein, at the maximum rate allowable under
11
(2002)
a. Interest on unpaid amounts shall begin to accrue from
the date the penalty is due and continue to accrue to the date payment
is received.
b. Where partial payment is made on any 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 the Complainant, shall be
paid by certified check 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 XI.2.
herein.
5. Settling Respondents shall cease and desist from future
violations of the Act and Board Regulations, including but not
limited to those sections of the Act and Board Regulations that
were the subject matter of the Complaint as outlined in Section V
of this Stipulation and Proposal for Settlement.
6. This Stipulation and Proposal for Settlement does not
impact, in any way, the liability of any nonsettling ‘Respondent in
this action, or any party not named in the Complaint. Settling
Respondents shall reasonably cooperate with the Complainant in this or
another proceeding against any nonsettling Respondent.
XII.
12
.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation and Proposal for Settlement in no way affects
the Settling Respondents’ responsibility to comply with any federal,
state or local laws and regulations.
XIII.
RELEASE FROM LIABILITY
In consideration of the Respondents’ payment of a $55,000.00
civil penalty and,its commitment to refrain from further violations of
the Act and the Board Regulations, upon receipt by Complainant of the
payment required by Section XI of this Stipulation, the Complainant
releases, waives and discharges Settling Respondents and their
officers, directors, employees, agents, successors and assigns from
any further liability or penalties for violations which were the
subject matter of the Complaint herein. However, nothing in this
Stipulation and Proposal for Settlement shall be construed as a waiver
by Complainant of the right to redress future violations or obtain
penalties with respect thereto.
The remainder of this page intentionally left blank.
13
.
WHEREFORE, Complainant and Settling Respondents request that the
Board adopt and accept the foregoing Stipulation and Proposal for
Settlement as written.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
By:
~OSEMARIE CAZEAU, C
ef
Environmental Bureau
Assistant Attorney General
Dated:
FOR THE SETTLING RESPONDENTS:
MARC
~,
INC.,
Its:
~
11 EAST ADAMS, L.L.C.,
By:
ILLINOIS ENVIRONMENTAL PROTECTION
O EP E SVOBODA
Chief Legal Counsel
Division of Legal Counsel
Dated:
~
9(
‘--~
/
I
Its:
~
~
14
BEFORE THE ILLINOIS POLLUTION CONTROL
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS;
ex
rel.
LISA
MADIGAN, Attorney
)
MAY 252004
General of the State of Illinois,
STATE OF ILLINOIS
Pollution Control Board
Complainant,
v.
)
PCB 04-100
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 11 EAST ADAMS, L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC.,’ an Illinois
corporation,
Respondents.
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
MOW 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:
1. On December 22, 2003, a Complaint was filed with the
Pollution Control Board (“Board”) in this matter. Simultaneously with
this Motion, the Complainant and Respondents Marc Realty, Inc. and 11
East Adams, LLC (“Settling Respondents”) are filing a Stipulation and
Proposal for Settlement with the Board. This motion only seeks relief
from the hearing requirement as to the two Settling Respondents and
does not seek relief as to any other respondent present in this case.
2. Section 31(c) (2) of the Illinois Environmental Protection
Act (“Act”), 415 ILCS 5/31(c) (2), (2002) 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, 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
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) (2002)
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of the
State of in is
By:
hristopher
.
P
Assista At me General
Office of the Attorney General
Environmental Bureau
188 West Randolph Street,
20th
Fl.
Chicago, IL 60601
312/814-3532
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached
Stipulation and Proposal for Settlement with Respondents Marc
Realty, Inc. and 11 East Adams, LLC, and Motion for Relief from
Hearing Requirement, by depositing the same in the United States
Mail, postage fully prepaid, upon the following persons:
Michael
J. Quinn
Seyfarth Shaw, LLP
55 East Monroe
Suite 4200
Chicago, Illinois
60603
Edward L. Filer
Darren R. Bertram
FagelHaber LLC
55 East Monroe,
40th
Floor
Chicago, Illinois 60603
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 W. Randolph Street,
~
Floor
Chicago, Illinois
60601
Christopher
Date: May 25, 2004
