BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
-
VS
-
PATTISON ASSOCIATES LLC, an Illinois
limited liability company, and
5701 SOUTH CALUMET LLC, an Illinois
limited liability company,
Respondents.
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)
PCB NO. 05
-
181
1
(Enforcement
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Air)
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)
)
1
)
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that today I have filed with the Office of the Clerk of the
Illinois Pollution Control Board by electronic filing the following Stipulation and Proposal for
Settlement, and Motion to Reauest Relief
from Hearing Requirement, copies of which are
attached and hereby served upon you.
BY:
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
46
bIc/d
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
2oth Floor
Chicago, Illinois 60601
312
-814-1511
DATE:
Junel4,2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
Mr. Jay Truty
Ms.
Allyson L. Wilcox
Bell Boyd
&
Lloyd LLC
70 W. Madison Street
,
Suite 3100
Chicago,
IL
60602
Mr. Bradley P.
Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 1
1-500
Chicago, IL. 60601
SERVICE LIST
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PATTISON ASSOCIATES LLC, an Illinois
limited liability company, and
5701 SOUTH CALUMET LLC, an Illinois
limited liability company,
Respondents.
)
)
)
)
)
PCBNo. 05
-
181
1
(Enforcement
-
Air)
)
)
1
)
1
)
MOTION TO REQUEST RELIEF
FROM HEARING REOUIREMENT
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. In support thereof, the Complainant states as
follows:
1.
On April 4,2005, a Complaint was filed with the Pollution Control Board
.
("Board") in this matter. On June 14,2006, a Stipulation and Proposal for Settlement was filed
with the Board.
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 from the
mandatory hearing requirement where the parties have submitted to the Board a stipulation and
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 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
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 l(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
LISA
MADIGAN
Attorney General of the State of Illinois
Environmental Bureau
188 W. Randolph St., 20th
F1.
Chicago, Illinois 60601
(312) 814
-1511
Dated: June 14,2006
PAULA BECKER WHEELER
Assistant Attorney General
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
PATTISON ASSOCIATES LLC, an
Illinois limited liability
company, and 5701 SOUTH CALUMET
LLC, an Illinois limited
liability compa'ny,
Respondents.
)
)
)
PCB 05-181
(Enforcement
-
Air)
)
)
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
(~~~llinois
EPA"), PATTISON
ASSOCIATES LLC and 5701 SOUTH CALUMET LLC, (collectively
"~espondents"), have agreed to the making of this Stipulation and
Proposal for Settlement (
"Stipulation") and submit it to the
Illinois Pollution Control Board
("~oard") 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
Complaint except as otherwise provided herein. If the Board
approves and enters this Stipulation, Respondents agree 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"), 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 April 4, 2005, 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(2004), against the Respondents.
2. The Illinois EPA is an administrative agency of the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
State of Illinois, created pursuant to Section 4 of the Act, 415
ILCS 5/4 (2004).
3. At all times relevant to the Complaint, Respondent
PATTISON ASSOCIATES LLC was and is an Illinois limited liability
company in good standing, and Respondent 5701 SOUTH CALUMET LLC
was and is an Illinois limited'liability company in good
standing.
B. Site Description
1. At all times relevant to the Complaint, Respondent
PATTISON ASSOCIATES LLC owned and operated a construction company
that performed renovation activities at the location o'f 57.01 S.
Calumet, Chicago, Cook County,
Illinois("Site")
.
2. At all times relevant to this Complaint, the co-
Respondent, 5701 SOUTH CALUMET LLC was and is the owner of the
property and building located at 5701 South Calumet Avenue,
Chicago, Cook County, Illinois. The building is
a residential
apartment building, containing eighteen (18) units.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
C. Allegations of Non-Compliance
C
Complainant contends that the Respondents have 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.
Count
11: Failure to Thoroughly Inspect Prior to
Renovation, in violation of Section
9.l(d)(1) of
the Act, 415 ILCS
5/9.l (d) (1) (2002), and 40 CFR
61.145 (a)
.
Count 111: Failure to Submit Notification, in violation of
Section 9.1
(d) of the Act, 415 ILCS
5/9.l (d) (1) (2002)and 40 CFR 61.145 (b) (1)
.
Count IV: Failure 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
65.145 (c) (1)
,
(c) (3)
,
(c)
(6)
,
and (c)
(8) .
Count V: Failure to Follow Proper Disposal Procedures, in
violation of Section 9.1
(dl (1) of the Act, 415
ILCS
5/9.l (d) (1) and 40 CFR 65.150 (b) (1)
.
D. Admission of Violations
The Respondents represent that they have entered into this
Stipulation for the purpose of settling and compromising disputed
claims without having to incur the expense of contested
litigation. By entering into this Stipulation and complying with
.
its terms, the Respondents do not affirmatively admit the
allegations of violation within the Complaint and referenced
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
within Section 1II.C herein, and this Stipulation shall not be
interpreted as includin
g
such admission.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant and the Respondents, and any officer, director,
agent, or employee of the Respondents, as well as any successors
or assigns of the Respondents. The Respondents shall not raise
as a defense to any enforcement action taken pursuant to this
Stipulation the failure of any of their 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 Respondents 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.
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:
1.
the character and degree of injury to, or
interference with the protection of the health,
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
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. Complainant contends that human health and the
environment were threatened by the Respondents' violations of the
Act and the asbestos
NESHAP. However, the threat of asbestos
contamination was abated by the proper remediation and disposal
of all asbestos
-containing material ("ACM") and asbestos.
contamination.
a
2. There is social and economic benefit to the business of
the Respondents.
3.
The renovation of the property at the site was suitable
for the area in which it occurred.
4.
Inspecting the premises and following the proper
procedures
for abatement of ACM and asbestos contamination was
both technically practicable and economically reasonable.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
5. Respondents have subsequently complied with the Act and
the Board Regulations by undertaking actions that adequately
address the Illinois
EPA1s technical concerns.
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 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;
the
number, proximity in time, and gravity of
previously adjudicated violations of this Act by
the respondent;
whether the respondent voluntarily self
-disclosed,
in accordance with subsection
i of this Section,
the non
-compliance to the Agency; and
whether the respondent has agreed to undertake a
"supplemental environmental project," which means
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
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 Respondents failed to sufficiently inspect the site
for asbestos
-containing materials prior to beginning or
continuing construction activities at the site, and violated
provisions of the regulations
concerning the
hand1 ing
and
disposal of the ACM. The violations occurred from at least
October of 2003 and were resolved by November 2003.
2. Respondents were 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
their noncompliance.
3. The quantifiable economic benefit to the Respondents
resulting from their failure to conduct the renovation project in
compliance with the Act and the asbestos NESHAP was nominal and
the penalty obtained includes any economic benefit received.
4. Complainant has determined, based upon the specific
facts of this matter, that a penalty of $20,000.00 will serve to
deter further violations and aid in future voluntary compliance
with the Act and Board regulations.
5. To Complainant's knowledge, Respondents have no
previously adjudicated violations of the Act.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
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 Respondents shall pay a civil penalty in the sum of
Twenty Thousand Dollars ($20,000.00) within fourteen (14) days
from the date the Board adopts and accepts this Stipulation. The
Respondents stipulate that payment has been tendered to
Respondents' attorney of record in this matter in a form
acceptable to that attorney. Further, Respondents stipulate that
said attorney has been directed to make the penalty payment on
behalf of Respondent, within fourteen (14) days from the date the
Board adopts and accepts 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
Springfield, IL 62794
-9276
The name and number of the case and Respondents' Federal Employer
Identification Numbers
("FEIN") shall appear on the check. A
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
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.
3. For purposes of payment and collection, Respondents may
be reached at the following address:
pattison Associates LLC
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
2159 West Madison Avenue
Chicago, IL 60612
Attn: James R.
Pattison
5701 South Calumet LLC
55 West Monroe Street
Suite 500
Chicago, IL 60603
Attn: Mr. John R. Joyce
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.D, below, the
Respondents hereby agree that this Stipulation may be used
against the Respondents 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 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, Respondents agree
to waive any rights to contest, in any subsequent enforcement
action or permit proceeding, any allegations that these alleged
violations were adjudicated.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
C. Cease and Desist
The Respondents shall cease and desist from future
violations of the Act and Board Regulations that were the subject
matter of the Complaint as outlined in Section
1II.C
("Allegations of Non-Compliance") of this Stipulation.
D. Release from Liability
In consideration of the Respondents
1
payment of the
$20,000.00 penalty and any specified costs and accrued interest,
completion of all activities required hereunder, their commitment
to Cease and Desist as contained in Section
VII1.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 Respondents from any further
liability or penalties for violations of the Act and Board
~egulations 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
accepted by the Board for filing on April
4, 2005. The
Complainant reserves, and this Stipulation is without prejudice
to, all rights of the State of Illinois against the Respondents
with respect to all other matters, including but not limited to,
the following:
a. criminal liability;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 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
.
Respondents.
E. 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. Respondents agree 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
3.
The parties agree that, if the Board does not approve
and accept this Stipulation and Proposal for Settlement, then the
parties are not bound by the terms herein.
4. It is the intent of the Complainant and Respondents
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.
F. 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
more counterparts, all of which taken together, shall constitute
one and the same instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
WHEREFORE, Complainant and Respondents, PATTISON ASSOCIATES
LLC and
5701
SOUTH CALUMET LLC, 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
A
BY:
(rab
DATE
:
Environmental ~ureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
n
ROBERT 'A. MESS-1fl~
Chief Legal Counsel
PATTISON ASSOCIATES LLC
BY:
Name
:
Title:
DATE
:
&hb@
DATE
:
5701
SOUTH CALUMET LLC
BY
:
Name
:
Title:
DATE
:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
WHEREFORE, Complainant. and Respondents, PATTISON ASSOCIATES
LLC and 57'01 SOUTH CALUMET LLC, request that the Board adopt and
accept the foregoing Stipulation and Proposal for Settlement as
written.
PEOPLE
0,F .THE STATE OF ILLINOIS,
LISA
MADIGAN
Attorney General
State of Illinois
MATTHEW
J. DUNN, Chief
Environmental ~nforcement/
Asbestos Litigation Division
BY
:
ROSEMARIE CAZEAU, Chief
Environmental
~ureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY
:
ROBERT A. MESSINA
Chief Legal Counsel
PATTISON ASSOCIATES LLC
-
U
5701 SOUTH CALUMET LLC
DATE
:
DATE
:
DATE
:
5/23
/6
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
CERTIFICATE OF SERVICE
I, PAULA BECKER WHEELER, an Assistant Attorney General in this case, do certify
that
I caused to be served this 14th day of June, 2006, the foregoing Stipulation and Proposal for
Settlement, Motion for Request for Relief from Hearing Requirement and Notice of Filing upon
the persons listed on said Notice by depositing same in an envelope, by first class postage and
certified mail prepaid, with the United States Postal Service at 188 West Randolph Street,
Chicago, Illinois, at or before the hour of
5:OO p.m.
fz
&@-
PAULA BECKER WHEELER
June 14,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 14, 2006
