BEFORE THE ILLINOIS POLLUTION CONTROL

BOARR~CE~VED

CLERR~5

OFFICE

ENVIRONMENTAL MANAGEMENT AND

ABATEMENT,

INC.,

a California

corporation, and DANNY G.

KOHRDT,

individually and as president of

Environmental Management and

Abatement,

Inc.,

Respondent.

OCT 082003

STATE OF ILUNOIS

Pol/utjoy

Control Board

(~nforcement

-

.L~andr

)

NOTICE OF FILING

TO:

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 W.

Randolph,

Suite 11-500

Chicago, Illinois 60601

Michael

J.

Maher

Elizabeth S. Harvey

Swanson,

Martin & Bell

One IBM Plaza

330 N. Wabash Avenue

Chicago,

Illinois 60611

PLEASE TAKE NOTICE that

I have today filed a Stipulation and

Proposal for Settlement,

a copy of which is attached and herewith

served upon you.

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN

Attorney General

State of Illinois

By:

Mitchell

L.

Cohen

Assistant Attorney General

Environmental Bureau

188 West Randolph,

Suite 2001

Chicago,

IL 60601

312-814-5282

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

JAMES

E.

RYAN, Attorney

General of the State of Illinois,

Complainant,

vs.

)

PCB No.

02-5

Dated: October

8,

2003

---

BEFORE

THE ILLINOIS POLLUTION CONTROL

OCT 0 82003

PEOPLE OF THE STATE OF ILLINOIS,

STATEOFIWNOIS

F

)

Pollution Control Board

v.

PCB 02-05

~

ABATEMENT,

INC.,

a California

)

(Enforcement)

corporation,

and DANNY G.

KOHRDT,

individually and as president of

Environmental Management &

Abatement,

Inc.

Respondents.

STIPULATION

AND PROPOSAL FOR SETTLEMENT

Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA

MADIGAN, Attorney General

of the State of Illinois,

the Illinois

Environmental Protection Agency

(“Illinois EPA”),

and Respondent,

ENVIRONMENTAL MANAGEMENT

& ABATEMENT,

INC.

(“EMA”),

a California

corporation,

and DANNY G.

KOHRDT,

individually and as president of

Environmental Management & Abatement,

Inc.,

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 which would be introduced by the

parties

if a trial were held.

The parties further stipulate that

this statement

of facts

is made and agreed upon for purposes of

1

---

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

not to contest

its validity in any subsequent proceeding to

implement or enforce its terms.

Insolvency of the Respondent by

filing a petition for bankruptcy shall not be deemed a proceeding

to contest the validity of this Stipulation.

I.

JURISDICTION

The Board has jurisdiction over the subject matter herein

and of the parties consenting hereto pursuant to the Illinois

Environmental Protection Act

(“Act”)

,

415 ILCS 5/i

et seq.

(2002)

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 Agreement

and to legally bind them to it.

III.

STATEMENT OF FACTS

A.

Parties

2

---

1.

On July 18,

2001,. a Complaint was filed on behalf of

the People of the State of Illinois by James

E. Ryan, Attorney

General of the State of Illinois, on his own motion and upon the

request of the Illinois EPA, pursuant to Section 31

of the Act,

415 ILCS 5/31

(2002),

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

(2002)

3.

At all times relevant to the Complaint,

including

November 23,

1998,

through April

13,

2000,

Respondent,

EMA,

was

and is

a California corporation that

is authorized to transact

business in the State of Illinois,

and Danny G.

Korhdt was and is

the owner,

operator,

and President of

EMA.

B.

Business

and Site Description

1.

At all times relevant to this Complaint, Respondents

were contractors engaged in, among other things,

the demolition

of buildin~s.

2. Before November 23,

1998,

Respondents demolished

buildings at the Joliet Army Ammunition Plant located at 29401

South Route

53, Wilmington,

Will County,

Illinois

(“Site”)

3.

In doing so, Respondents crushed large pieces of concrete

near an on-site gravel pit and filled the same gravel pit with

concrete containing rebar,

dirt,

bricks and small amounts of wood

and miscellaneous waste. Respondents generated and placed into

3

---

the gravel pit approximately two hundred thousand

(200,000)

cubic

yards of waste.

C.

Allegations of Non-Compliance

1.

Complainant contends that bhe Respondent has violated

the following provisions of the Act and Board Regulations:

Count

I: Open Dumping

Violation of Section 21(a)

of the Act,

415 ILCS

5/21

(a)

(2002)

Count

II: Failure to File Reports and Information

Relating to the On Site Disposal of Waste

Violation of Section 21(d)

of the Act,

415 ILCS 5/12(f)

(2002); and Section 815.101(a)

of the Illinois

Pollution Control Board Waste Disposal Regulations,

35

Ill. Adm.

Code 815.101(a).

D.

Admission of Violations

The Respondent neither admits nor denies the violations

alleged in the Complaint filed in this matter and referenced

herein.

The Respondent represents that it has entered into this

Stipulation and Proposal

for Settlement for the purpose of

settling and compromising disputed claims without having to incur

the expense of contested litigation.

By entering into this

Stipulation and Proposal for Settlement and complying with its

terms,

the Respondent does not affirmatively admit the

allegations of violation within the Complaint,

and this

Stipulation shall not be interpreted as including any admission

of liability.

E.

Compliance Activities

to Date

4

---

1.

Before abandoning the Site, Respondents performed some

remediation,

including removing material from the gravel pit,

shipping some of the rebar for recycling,

and disposing of the

miscellaneous waste.

2. Upon abandoning the Site,

Respondents, with the help of

other companies, made arrangements for the Site to be completely

remediated. The Site was completely remediated by July 20,

2000.

IMPACT ON THE PUBLIC RESULTING FROM 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 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

L1i~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.

5

---

In response to these factors, the parties state:

1.

The Parties state that the impact to the public

resulting from Respondent’s non-compliance was that harm to human

health and the environment was threatened by Respondents’

open

dumping and failure

to comply with reporting requirements.

2.

The Parties agree that Respondent’s business is of

social and economic benefit.

3.

The parties agree that Respondents work performed

at

the site was suitably located for the demolition of existing

buildings

at the site, but that the disposal of waste from the

demolition was not suitably located for the site.

4.

The parties agree that complying with the requirements

of the Act is both technically practicable and economically

reasonable.

5.

The parties state that Respondents helped remediate

the site and arranged for complete remediation including all

wastc removal from the on-site gravel pit

CONSIDERATION OF SECTION 42(h)

FACTORS

Section 42 (h)

of the Act,

415 ILCS 5/42 (h) (2002)

,

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:

6

---

1.

the duration and gravity of the

violation;

2.

the presence or absence of due diligence on

the part of the violator 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 violdLoL

because of delay in compliance with

requirements;

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 this Act by the

violator 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 violator.

In response to these factors, the parties state:

1.

The Parties state that the duration of the violation

for open dumping and failing to follow proper reporting

requirements

for on-site waste disposal occurred at least from

Fall,

19-98 until July 20,

2000.

2.

The parties agree that Respondents demonstrated some

diligence in regard to these violations: Respondents performed

some remediation at the site and helped make arrangements for

complete remediation.

3.

The Parties~agree Respondents received economic benefit

by not complying with the statutes in

a timely manner.

4.

The Parties agree that the appropriate penalty which

7

---

v~illserve to deter future violations of the Act and enhance

voluntary compliance is $50,000.00.

5.

The Parties agree that Respondents have no prior

adjudications for violations of the Act.

APPLICABILITY

A.

This Stipulation Agreement shall apply to and be binding

upon the Complainant and the Respondent1 and any officer,

director,

agent, or employee of the Respondent,

as well

as any

successors or assigns of the Respondent.

The Respondent shall

i~otraise as a defense to any enforcement action taken pursuant

to this Stipulation Agreement the failure of any of its officers,

directors,

agents,

or employees

to take such actions as shall

be

required to comply with the provisions of this Stipulation.

B.

No change in ownership, corporate status or operator of the

facility shall

in any way alter the responsibilities of the

Respondent under this Stipulation.

In the event

of any

conveyance of title,

easement or other interest in the facility,

the Respondent

shall continue to be bound by and remain liable

for performance of all obligations under this Stipulation.

In

appropriate circumstances,

however, the Respondent and a

contemplated future owner or operator of the facility may jointly

request,

and the Complainant,

in its discretion, may consider

modification of this Stipulation to obligate the proposed

8

---

purchaser or operator to carry out future requirements of this

Stipulation in place of,

or in addition to, the Respondent.

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 Act, and

the Board Regulations,

35

Ill. Adm. Code,

Subtitles A through H.

A.

Penalty

1.

a.

The Respondent

shall pay a civil penalty of Fifty

Thousand Dollars

($50,000.00)

.

Within thirty

(30)

days after the

date on which the Board adopts a final order approving this

Stipulation,

Respondent

shall pay $25,000.00. Respondent shall

pay the final $25,000.00 within 60 days of the date on which the

Board adopts a final order approving this Stipulation.

Payments

shall be made as follows:

b.

Payments shall be made by certified check or money

order,

payable to the Illinois EPA for deposit into the

Environmental Protection Trust Fund

(“EPTF”)

and shall be sent by

first class mail and delivered to:

Illinois Environmental Protection Agency

Fiscal Services

1021 North Grand Avenue East

9

---

P.O. Box 19276

Springfield,

IL 62794-9276

c.

The name,

case number,

and the Respondent’s

Federal Employer Identification Number

(“FEIN”),

___________

shall appear on the face of the certified checks or money orders.

A copy of the certified che~kb

Ui

~uo~

orders and the

transmittal letter shall be sent

to:

Mitchell

L.

Cohen

Assistant Attorney General

Environmental Bureau

188 West Randolph,

Suite 2001

Chicago,

Illinois 60601

3.

For purposes Of payment and collection,

the

Respondent’s attorney may be reached at the following address:

Michael

J. Maher

Swanson, Martin & Bell

One IBM Plaza,

Suite 2900

Chicago, Illinois 60611

4.

For purposes of payment and colledtion,

Respondent may

be reached at the following addresses:

Environrnent.~lM~nag~m~nt

& Abatement,

Inc.

do Danny Korhdt,

President

26715 Diagonal Road

Elwood,

Illinois 60421

5.

In the event

of default, the Complainant shall be

entitled to reasonable costs of collection,

including reasonable

attorney’s

fees.

B.

Interest on Penalties

1.

Pursuant to Section 42(g)

of the Act, 415 ILCS 5/42

(g) (2002),

interest shall accrue on any penalty amount owed by

10

---

the Respondent not paid within the time prescribed herein,

at the

maximum rate allowable under Section 1003(a)

of the Illinois

Income Tax Act,

35 ILCS 5/1003 (a)

(2002)

2.

Interest on unpaid penalties shall begin to accrue from

the date the penalty is due and continue to accrue to the date

payment is received by the Illinois EPA.

3.

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.

4.

All interest on penalties owed the Complainant shall be

paid by certified check or money order payable to the Illinois

EPA for deposit in the EPTF at the above-indicated address.

The

name,

case number,

and the Respondent

‘s FEIN shall appear on the

face of the certified check or money order.

A copy of the

certified check or money order and the transmittal letter shall

be sent to:

Mitchell

L.

Cohen

~.

...

-

Ass±s.tan Attorney..Qenera.l

Environmental Bureau

188 West Randolph St.,Suite 2001

Chicago,

Illinois 60601

C.

Future Use

Notwithstanding any other language in this Stipulation

Agreement to the contrary,

this Stipulation may be asserted

against the Respondent

in any subsequent enforcement action as

evidence of a past adjudication of violation

of the Act and the

Board Regulations promulgated thereunder,

for purposes of

11

---

Sections 39(i)

and/or 42(h)

of the Act,

415 ILCS 5/39(1)

and/or

5(42

(h)

(2002)

D.

Cease and Desist

The Respondent shall cease and desist from all future

violations of the Act and Board Regulations,

including,

but not

limited to those violations that are outlined in Section III.C.

ot this Stipulation.

E.

Release from

Liability

In consideration of the Respondents’ payment of a $50,000.00

penalty,

the Complainant releases, waives and discharges the

Respondent from further liability or penalties for any violations

of 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 July 18,

2001. The Complainant

reserves, and this Stipulation is without prejudice to, all

i~ht~~f

thèStãte bf ThinOls &g~inst~the~Respondentwith

-

-

respect to all other matters,

including butnot

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 resource damage arising out of

the alleged violations; and

12

---

d.

liability or claims based on the Respondent’s failure

to satisfy the requirements of this Stipulation Agreement.

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

3.26 of the

Act,. 415 ILCS 5/3.26

(2002),

or entity other than the

Respondent.

F.

The Board shall retain jurisdiction of this matter for the

purpose of interpreting and enforcing the terms and conditions of

the Stipulation.

G.

Enforcement of Stipulation

1.

Upon the entry of this Stipulation,

any party hereto,

upon motion, may reinstate these proceedings solely for the

~

~ti~pose

of

enforcing

the-terms-and

-conditions

of •~this

Stipulation.

This Stipulation is a binding and enforceable order

of the Board and may be enforced by the Illinois Circuit Court

through any and all available means.

2.

Respondent agrees that notice of any subsequent

proceeding to enforce this Stipulation may be made by mail and

waives any requirement of service of process.

13

---

WHEREFORE,

the parties,

by

their representatives,

enter into

this Stipulation and submit it to the Board that it may be

approved and entered.

AGREED:

FOR THE COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

ex rd.

LISA

MAJIGAN,

Attorney General

of the

State of Illinois

MATTHEW J.

DUNN,

Chief

ILLINOIS

ENVIRONMENTAL

Environmental Enfcrcement/

PROTECTION AGENCY

Asbestos Litigation Division

__________________

BY:

__________________

ROSEMARIE CAZEAU,

Chief

JOSEPH

B.

SViDBODA

Environmental Bureau

Chief Legal Counsel

Assistant Attorney General

DATE:

____________________

DATE:

___________________

FOR THE RESPONDENTS:

ENVIRONNENTAL MANAGEMENT

& ABATEMENT,

INC.

BY:

_______

Danny

.

I~orhdt

Its President

_7

DATE:

______________

DANNY

G.

KORMDT

BY:

____________

Danny G/Korhdt

DATE;

~ —‘2~

c~J~

14

**

TOTAL

PAGE.16

**

---

WHEREFORE,

the parties, by their representatives,

enter into

this Stipulation and submit

it

to the Board that it may be

approved and entered.

AGREED:

FOR

THE

COMPLAINANT:

PEOPLE OF THE STATE OF ILLINOIS

ex rel.

LISA MADIGAN,

Attorney General of the

State of Illinois

MATTHEW J.

DUNN,

Chief

Environmental Enforcement/

Asbe~,t~9Litigation (~vision

BY:

~1~._m—’—-~-

BY:

RO~~RI

E\~CAZE~

~1~e~f

Envi

fimen’t~Bèai~--..~

Assistant Attorney General

DATE:

~(

(L~

(o3

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY

O EPH’E.

SVOBODA

C ief Legal Counsel

DATE:

_______

FOR THE RESPONDENTS:

ENVIRONMENTAL MANAGEMENT & ABATEMENT,

INC.

BY:

DATE:

Danny G.

Korhdt

Its President

DANNY G.

KORHDT

BY:

DATE:

Danny G.

Korhdt

14

---

CERTIFICATE OF SERVICE

I, MITCHELL L.

COHEN,

an Assistant Attorney General, do

certify that

I caused to be mailed this 8th day of October,

2003,

a copy of the

Stipulation and Proposal for Settlement, Notice of

Filing, and Certificate of

Service

upon the persons listed below:

Mike Maher

Elizabeth Harvey

Swanson, Martin & Bell

One IBM Plaza,

Suite 2900

330 North Wabash

Chicago,

Illinois 60611

Bradley

P.

Halloran

Hearing Officer

Pollution Control Board

JRTC,

Suite 11-500

Chicago,

IL 60601

/,

~

.

~

MITCHELL

L.

COHEN

I:

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