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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OCT

0

8

2003

PEOPLE OF THE STATE OF ILLINOIS,

)

STATE OF ILLINOIS

Complainant,

)

Pollution

Control Board

v.

)

No. PCB

‘-‘-‘

CHICAGO DIVERSIFIED PROJECTS,

INC.,

an Illinois Corporation,

Respondent.

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on October

8,

2003,

we filed with

the Illinois Pollution Control Board a Stipulation and Proposal

for Settlement,

a true and correct copy of which is attached and

hereby served upon you.

Respectfully submitted,

LISA

MADIGAN

Attorney General

State of Illinois

BY:

__________

MITCHELL

L. COHEN

Assistant Attorney General

Environmental Bureau

188 W.

Randolph St.,

20th Floor

Chicago,

Illinois

60601

(312)

814-5282

---

SERVICE LIST

Norman Chimenti

Martin,

Craig, Chester & Sonnenschein

2215 York Road,

Suite 550

Oak Brook,

IL 60523

Bradley

P. Halloran

~

Illinois Pollution Control Board

JRTC,

Suite 11-500

Chicago,

IL 60601

---

R~C~JVED

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDCLERK’S OFFICE

OCT 0 8

2003

PEOPLE OF THE STATE OF ILLINOIS,

STATEOF ILLINOIS

Pollution

ControlBoard

Complainant,

PCB

03-13

(Enforcement

-

Air)

CHICAGO DIVERSIFIED PROJECTS,

INC.,)

an Illinois Corporation,

Respondents.

STIPULATION A1~DPROPOSAL 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,

CHICAGO DIVERSIFIED PROJECTS,

INC.

(“CDP”),

an Illinois

Corporation,

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 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

1

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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.

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 5/1

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.

A.

Parties

1.

On July 31,

2002,

a

Complaint

was filed on behalf of

the People of the State of Illinois by James B.

Ryan, Attorney

General

of the State of Illinois,

on his own motion and upon the

2

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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

December 20,

1999,

Respondent,

CDP,

was and is an Illinois

Corporation.

B.

Business and Site Description

1.

At all times relevant to this Complaint,

Respondent CDP

was and is a licensed and bonded asbestos and lead abatement

contractor located at

6015 North Ridge,

Chicago,

Illinois.

2.

In 1999,

CDP was hired to remove and dispose of asbestos

at a former office/apartment complex located at 3335-3341 North

Halsted, Chicago,

Illinois 60657

(“site”)

3.

CDP notified the Illinois EPA that demolition and

renovation would start on December 20,

1999,

and end on December

21,

1999,

and that CDP would remove 250 linear feet of asbestos

pipe insulation from the former office/apartment complex using

wet method bag removal techniques.

4. At least some of the pipe insulation was dry,

friable,

regulated asbestos containing material

(RACM”)

5.

On December 20,

1999,

an Illinois EPA field inspector

measured the total project at 286 linear feet.

3

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6.

The Illinois EPA field inspector also states that he

observed CDP workers removing pipe insulation without the use of

water. He also states that he observed 37 bags of previously

removed dry friable pipe insulation, and that all of the pipe

insulation in the bags was dry.

7.

The Illinois EPA field inspector collected three samples

of the alleged dry pipe insulation. Analysis of the samples

showed chrysotile asbestos ranging in concentrations of 30 to 50

per cent.

C.

Allegations of Non-Compliance

Complainant contends that the Respondent has violated the

following provisions of the Act and Board Regulations:

Count

I:

Improper Removal of Regulated Asbestos

Containing Material in violation of Section 9.1(d)

of

the Act and 40 CFR 61.145(c) (3)

and

(6).

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

4

---

allegations of violation within the Complaint,

and this

Stipulation shall not be interpreted as including any admission

of liability.

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 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

5.

any subsequent compliance.

In response to these factors, the parties state:

1.

The Parties state that the impact to the public

resulting from Respondent’s alleged non-compliance was that harm

to human health and the environment was threatened by

5

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Respondent’s alleged improper removal

of asbestos containing

material.

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 asbestos removal when done in

accordance with the Act and relevant regulations.

4.

The parties agree that complying with the requirements

of the Act and relevant regulations is both technically

practicable and economically reasonable.

5.

The parties state that they are not aware of any

alleged non-compliance on Respondent’s part since this incident

on December 20,

1999.

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:

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;

6

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3.

any economic benefits accrued by the violator

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 alleged

violation for the improper removal of asbestos containing

material was one day: December 20,

1999.

2.

The parties agree that they are not aware of any non-

compliance of Respondent’s part since the violation alleged in

the Complaint.

3.

The Parties agree Respondents received economic benefit

by allegedly not complying with the statutes.

4.

The Parties agree that the appropriate penalty which

~~illserve

to deter future violations of the Act and enhance

voluntary compliance is $10,000.00.

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

7

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upon the Complainant and the Respondent,

and any officer,

director,

agent, or employee 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 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

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

8

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the Board Regulations,

35

Ill. Adm.

Code,

Subtitles A through H.

TERMS OF SETTLEMENT

A.

1.

a.

The Respondent shall pay a civil penalty of Ten

Thousand Dollars

($10,000.00)

.

Within thirty

(30) days after the

date on which the Board adopts a final order approving this

Stipulation, Respondent shall pay $5,000.00.

Respondent shall pay

an additional $2,500.00 within 60 days and the final $2,500.00

within 90 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

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 checks or money orders and the

transmittal letter shall be sent to:

9

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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:

Norman V.

Chimenti

Martin,

Craig,

Chester & Sonnenschein

2215 York Road,

Suite 550

Oak Brook,

Illinois 60523

4.

For purposes of payment and collection, Respondent may

be reached at the following addresses:

Chicago Diversified Projects,

Inc.

do Don Gors, President

6015 North Ridge

Chicago,

Illinois 60660

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

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.

10

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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

Assistant Attorney General

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 alleged violation of the Act

and the Board Regulations promulgated thereunder,

for purposes of

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

11

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limited to those violations alleged and outlined in Section

HI.C.

of this Stipulation.

E.

Release from Liability

In consideration of the Respondents’ payment of a $10,000.00

penalty,

the Complainant releases, waives and discharges the

Respondent from further liability or penalties for any alleged

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 31,

2002.

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,

-

-

1

~

c.

liability for natural resource 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 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

12

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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.

Retention of Jurisdiction

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

purpose 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

pro

~

waives any requirement of service of process.

13

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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

ILLINOIS ENVIRONMENTAL

Environmental Enforcement/

PROTECTION AGENCY.

Asbestos Litigation Division

BY:

__________________

BY:

________________

ROSEMARIE CAZEAU,

Chief

JOSEPH

E.

SVOBODA

Environmental Bureau

Chief Legal Counsel

Assistant Attorney General

DATE:

____________________

DATE:

FOR THE RESPONDENT:

CHICAGO DIVERSIFIED PROJECTS,

INC.

BY:

~

~

1~JL)i.

J.

‘~~_

.~

Its President

DATE:

~-2~2~o3

14

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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

ILLINOIS ENVIRONMENTAL

Environmental Enforcement!

PROTECTION AGENCY

Asbep~t~Litigation

ivision

BY:

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Environme

a~1

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(,~hiefLegal Counsel

Assistant Attorney~S~ral

DATE:

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DATE:

_________________

FOR THE RESPONDENT:

CHICAGO DIVERSIFIED PROJECTS,

INC.

BY:

___________________

Doi~±—~o

ro

Its President

DATE:

_____________________

14

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CERTIFICATE OF SERVICE

I,

MITCHELL COHEN,

an Assistant Attorney General,

certify

that’ on the 8th day of October,

2003,

I caused to be served by

First Class Mail the foregoing Stipulation and Proposal for

Settlement to the parties named on the attached service list, by

~

~h—t-he--U~L-te~.

-—

States Postal Service located at 100 West Randolph Street,

Chicago, Illinois 60601.

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