Lisa Madigan
A9 -
rORNEY GENERAL
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R. Thompson Center, Ste
. 11-500
100 West Randolph
Chicago, Illinois 60601
Re:
People v. Walter F. Deemie
PCB No. 02-79
Dear Clerk Gunn :
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, self-addressed envelope
.
Thank you for your cooperation and consideration
.
PM/pp
Enclosures
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
July 21, 2006
RECEIVED
CLERK'S JUL 2 5 2006
Pollution
STATE OF
Control
ILLINOISBoard
Very truly yours,
Phillip McQuillan
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • 'C IT . (217) 785-2771 • Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
• (312) 814-3000 • TTY: (312) 814-3374
•
Fax: (312) 814-3806
1001 East Main, Carhondale, Illinois 62901 • (618) 529-6400 • TTY : (618) 5Z9-6403 • Fax : (618) 529-6416
MOTION FOR RELIEF FROM HEARING REQUIREMENT
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 5/31(c)(2) (2004), 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) (2004)
. 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) (2004) .
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
JUL 2 5 2006
PEOPLE OF THE STATE OF
)
STATE OF ILLINOIS
ILLINOIS,
)
Pollution Control Board
Complainant,
)
vs .
)
No. 02-79
WALTER F. DEEMIE, d/b/a River City
)
Demolition,
)
Respondent .
)
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) (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
MATTHEW J . DUNN, Chief
Environmental Enforcement/Asbestos
Litigation, Division
BY:~PHILIP
Me
N
Environmental Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : July 21, 2006
2
CERTIFICATE OF SERVICE
I hereby certify that I did on July 21, 2006, 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 :
Walter F . Deemie
P.O. Box 726
Peoria, IL 61652
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s) :
To:
Dorothy Gunn, 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
PHILLIP M QUILLA
Assistant Attorney General
This filing is submitted on recycled paper .
NOTICE OF FILING
To:
Walter F . Deemie
P.O . Box 726
Peoria, IL 61652
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
MATTHEW J
. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation D sio
BY: PHILLI
McQ LLAN
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : July 21, 2006
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
PEOPLE OF THE STATE OF
)
JUL 2 5 2006
ILLINOIS,
)
STATE OF
ILLINOIS
Complainant,
)
vs .
)
No . 02-79
Pollution Control Board
WALTER F
. DEEMIE, d/b/a River City
)
Demolition,
)
Respondent
.
)
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
PCB No. 02-79
vs.
)
(Enforcement - Air)
WALTER F . DEEMIE, d/b/a River City
)
Demolition,
)
Respondent .
STIPULATION AND PROPOSAL FOR SETTLEMENT
TABLE OF CONTENTS
I .
JURISDICTION
2
II.
AUTHORIZATION
2
Ill .
STATEMENT OF FACTS
2
A
.
Parties
2
B
.
Site Description
3
C .
Allegations of Non-Compliance
4
D .
Admission of Violations
4
IV.
APPLICABILITY
4
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
5
VI .
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
5
VII
.
CONSIDERATION OF SECTION 42(h) FACTORS
6
VIII . TERMS OF SETTLEMENT
8
A.
Penalty Payment
8
A . Future []Se
10
C. Correspondence !ReportsSandOther Documents 10
D.
Rkxht nfEntry
11
E . C0rnp!i8onePlan
11
F . Cease andDesist
1
G
.
Release from Li8hi!ih/
2
H . Enforcement nfBoard Order
13
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
R
CLERK'S
ECEIVEDOFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUL 2 5 2006
Complainant,
Pollution
STATE OF
Control
ILLINOISBoard
)
PCB No. 02-79
vs .
)
(Enforcement - Air)
WALTER F .
DEEMIE, d/b/a River City
)
Demolition,
)
Respondent .
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
WALTER F . DEEMIE, d/b/a River City Demolition ("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 . The parties agree that the statement of facts
contained herein represents a fair summary of the evidence and testimony that 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 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 .
1
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) .
II .
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 .
STATEMENT OF FACTS
A.
Parties
1 .
On December 14, 2001, a Complaint was filed on behalf of the People of the
State of Illinois by the Attorney General of the State of Illinois, on the Attorney General's motion
and upon the request of the Illinois EPA, pursuant to Section 31 of the Act, 415 ILCS 5/31,
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 .
3 .
At all times relevant to the Complaint, Respondent was and is Walter F . Deemie,
an individual, doing business as River City Demolition, P .O . Box 726, Peoria, Illinois 61652
.
4 .
At all times relevant to the Complaint, Respondent was the "operator" of a
demolition activity as defined by the NESHAP for asbestos .
2
B.
Site Description
1 .
At all times relevant to the Complaint, Respondent contracted with the Capitol
Development Board to perform demolition activities
upon a building at a former Central
Management Services power plant facility, located at 1920 10'/2 Street, Springfield, Sangamon
County, Illinois ("site") .
2.
At this site, Respondent demolished a structure that was
a "facility" as that term
is defined by the NESHAP for asbestos .
3.
At this site, Respondent caused, threatened or allowed the discharge or emission
of asbestos, a contaminant and hazardous substance,
into the environment in sufficient
quantities and of such characteristics and duration so as to cause or threaten air pollution
during demolition of the power plant building, and has
thereby violated Section 9(a) of the Act,
415 ILCS 5/9(a) .
4,
At this site, Respondent failed to adequately wet and maintain wet regulated
asbestos-containing material ("RACM") and regulated
asbestos-containing waste material
generated during demolition activities upon the power plant building until collected and
contained in preparation for disposal at a permitted waste disposal site, and has thereby
violated 40 CFR 61 .145(c)(6) and Section 9 .1(d) of the Act,
415 ILCS 5/9.1 (d) .
5.
At this site, Respondent failed to adequately wet and properly contain and
properly dispose of all RACM and regulated asbestos containing waste material during and after
demolition and removal, in violation of 40 CFR 61 .145(c)(3) and 61 .150(a)(1) and Section
9
.1(d)(1) of the Act, 415 ILCS 5/9
.1(d)(1)
.
3
C .
Alleqations of Non-Compliance
Complainant alleges that the Respondent has violated the following provisions of the
National Emission Standards for Hazardous Air Pollutants ("NESHAP"), the Act, and Board
regulations:
D .
Admission of Violations
The Respondent admits to the violations alleged in the Complaint filed in this matter and
referenced herein .
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the
Respondent, and any officer, director, agent, employee or servant 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 or
agents to take such action as shall be required to comply with the provisions of this Stipulation .
4
Count I : Section 9(a) of the Act, 415 ILCS 5/9(a), and 35 lll .Adm .Code
201
.141
.
Count II : Section 9 .1(d) of the Act, 415 ILCS 5/9 .1(d) ;
40 CFR 61 .145(c)(3) ; 40 CFR 61 .145(c)(6) ; and
and 40 CFR 61 .150(a)(1) .
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 NESHAP for
asbestos, the Act, and the Board regulations, 35 III . Adm . Code Subtitles A through H
.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c), 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 :
(i)
the character and degree of injury to, or interference with the protection of
the health, general welfare and physical property of the people ;
(ii)
the social and economic value of the pollution source
;
(iii)
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
;
(iv)
the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges or deposits resulting from such
pollution source ; and
(v)
any subsequent compliance .
In response to these factors, the parties state the following :
1 .
The failure by Respondent to properly remove, handle, and dispose of dry friable
RACM significantly threatened public health and the environment .
2.
There is social and economic value to Respondent's activities .
3.
The issue of location and suitability of the former CMS power plant to the area is
not disputed . Notwithstanding, demolition activities performed by Respondent, at the site, in
5
violation of the NESHAP for asbestos and the Act, were not suitable to the area given such
activities caused a significant threat to public health and the environment
.
4 .
Adequate wetting, handling, containment, and disposal of the regulated asbestos
containing material in compliance with the NESHAP for asbestos, the Act, and Board
regulations is both technically practicable and economically reasonable and facilitates the
proper disposal of all RACM at the site
.
5 .
Respondent promptly implemented measures to control asbestos emissions at
the request of the Illinois EPA .
' 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 subdivisions
(a),
(b)(1), (b)(2), (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 :
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
6
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 determining the appropriate civil penalty to be imposed under subsection (a)
or paragraph (1), (2), (3), or (5) of subsection (b) of this Section, the Board
shall ensure, in all cases, that the penalty is at least as great as the economic
benefits, if any, accrued by the respondent as a result of the
violation, unless
the Board finds that imposition of such penalty would
result in an arbitrary or
unreasonable financial hardship . However, such civil penalty may be off-set
in whole or in part pursuant to a supplemental environmental
project agreed to
by the complainant and the respondent .
In response to these factors, the parties state as follows :
1 .
The Respondent failed to ensure compliance with the
NESHAP for asbestos and
the Act by not adequately wetting, properly containing
and disposing of RACK The violations
began on or around May 1, 1999 ; work temporarily ceased on or about May 3, 1999, at the
request of the Illinois EPA ; a violation notice was sent
to respondent on May 13, 1999 ; and,
remediation of all asbestos contamination was completed .
2 .
In response to the notice of noncompliance issued by the Illinois EPA,
Respondent was diligent in attempting to comply with the
Act, Board regulations, and the
NESHAP for asbestos .
3.
The economic benefit derived by Respondent resulting from the failure to operate
in compliance with the Act and the NESHAP for asbestos is the savings realized by avoiding the
cost of adequately wetting the regulated asbestos containing material and utilizing work
practices and procedures necessary to properly handle and dispose of all regulated asbestos-
containing material . Respondent contends that he received no economic benefit as a result of
the failure to implement asbestos removal and emission control methods and procedures as
alleged in the complaint .
7
4.
Complainant has determined, based upon the specific facts of this matter, that a
penalty of Eight Thousand Dollars ($8,000 .00) will serve to deter further violations, and to aid in
future voluntary compliance with the Act, Board regulations, and the NESHAP for asbestos .
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 amount of Eight Thousand
Dollars ($8,000 .00) in twelve (12) installments as follows : the first installment of $666 .67 shall
be due within thirty (30) days after the date the Board adopts and accepts this Stipulation ; the
remaining installments, each in the amount of $666 .66, shall be due each month thereafter on
the 15 th day of the month . The penalty described in this Stipulation shall be paid by certified
check, money order, or wire transfer payable to the "Illinois EPA for deposit into the EPTF"
which designates the payment to the Illinois Environmental Protection Trust Fund ("EPTF") ;and,
payments shall be sent to :
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O . Box 19276
Springfield, Illinois 62794-9276
8
The name and number of the case and Respondent's Social Security Number, (SSN), shall
appear on the check . A copy of the certified check or money order and the transmittal letter
shall be sent to
:
Phillip McQuillan
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
2.
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g), 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 . 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 payments
owed shall be paid by certified check or money order, payable to the "Illinois EPA for deposit
into EPTF" which designates the payment to the Illinois Environmental Protection Trust Fund
("EPTF") and delivered to the address and in the manner described above .
3.
For purposes of payment and collection, Respondent may be reached at the
following address
:
Walter F . Deemie
P. 0 . Box 726
Peoria, IL 61652
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 .
5 .
In the event of default of this Section VIII . A . as to any payment,
all unpaid
payments become immediately due and owing .
9
B.
Future Use
Notwithstanding any other language in this Stipulation
to the contrary, the Respondent
agrees that this Stipulation may be used against the Respondent
in any subsequent
enforcement action 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) . Further, Respondent agrees to waive any rights
to contest, in any subsequent
enforcement action, any allegations that these alleged violations were adjudicated .
C.
Correspondence . Reports and Other Documents
Any and all correspondence, reports and any other documents required under this
Stipulation, except for payments, shall be submitted
as follows :
As to the Complainant
Phillip McQuillan
Assistant Attorney General (or other designee)
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
Dennis Brown
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O. Box 19276
Springfield, Illinois 62794-9276
10
G. Release from Liability
In consideration of the Respondent's commitment to comply
with the NESHAP for
asbestos, the Act, the Board's regulations, payment of the $8,000
.00 penalty, and any accrued
unpaid interest, and upon the Pollution Control Board's
acceptance and approval of the terms of
this Stipulation, the Complainant releases, waives
and discharges the Respondent from any
further liability or penalties for violations of the NESHAP for asbestos, 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 December 14, 2001 . 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
. 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 Respondent .
12
H. Enforcement of Board Order
1 .
Upon the entry of the Board's Order approving and accepting
this Stipulation,
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
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, 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 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.
13
WHEREFORE, Complainant and Respondent request that the Board adopt and accept
the foregoing Stipulation 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 :
7i'
BY:
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
ROBE T A MES INA
Chief Legal Counsel
WALTER F. DEEMIE, Respondent
14
DATE:
DATE: 7rf4lb
(f
DATE :
7/5/O 6
