REC~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
APR ~52OO5
STATE
OF ILLINOIS
Pollution Control Board
Complainant,
PCB 05-63
v.
(Enforcement
-
Air)
NORTH ROCKWELL,
LLC,
an Illinois
limited liability company,
Respondent.
NOTICE OF FILING
TO:
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on April
15,
2005,
the People of
the State of Illinois filed with the Illinois Pollution Control
Board a Stipulation and Proposal for Settlement and Motion for
Relief from Hearing Requirement,
true and correct copies of
which are attached and hereby served upon you.
Respectfully submitted,
LISA
MADIGAN
Attorney General
State of Illinois
BY:
\A
~
(~ J~NNIFE A. TOMAS
“—~ssistantAttorney General
Environmental Bureau
188 W. Randolph Street,
Suite 2001
Chicago, Illinois
60601
(312)
814-0609
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
J.
David Ballinger
Horwood Marcus & Berk
180 N.
LaSalle Street,
Suite 3700
Chicago, Illinois
60601
Chris Pressnall
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois
62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center,
Suite 11-500
100 W. Randolph Street
Chicago, Illinois
60601
RECE~VED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
APR ~52005
STATE OF
ILLINO$S
Pollution
Control Board
Complainant,
PCB 05-63
v.
)
(Enforcement
-
Air)
NORTH ROCKWELL,
LLC,
an Illinois
limited liability company,
Respondent.
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) (2002),
moves that
the Illinois Pollution Control Board
(“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) (2002)
.
In support of this motion, Complainant states
as follows:
1.
The Complaint
in this matter alleges violations of
Sections
9(a)
and 9.1(d) (1)
of
the, Act,
415 ILCS 5/9(a)
and
9.1(d) (1) (2002),
Section 201.141 of the Board’s Air Pollution
Regulations,
35
Ill. Adm. Code 201.141, and Sections 61.145(a),
61.145(c) (1)
and
(6), and 61.145(b).(l) and
(3)
of the asbestos
NESHAP,
40 C.F.R.
61.145(a),
61.145(c) (1)
and
(6),
and
61.145 (b) (1) and
(3).
2.
Complainant is filing this Motion and a Stipulation
and Proposal for Settlement with the Board.
3.
The parties have reached agreement on all outstanding
issues
in this matter.
4.
This agreement
is presented to the Board in
a’
Stipulation and Proposal for Settlement filed this same date.
5.
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) (2002).
2
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) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
State of Illinois
BY:_____
JE
IFER
.
TOMAS
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th Floor
Chicago, Illinois
60601
(312)
814-0609
DATE: April
15
,
2005.
3
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR 15 2005
PEOPLE OF THE STATE OF
ILLINOIS,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
PCB 05-63
-
(Enforcement
-
Air)
NORTH ROCKWELL,
LLC,
an Illinois
limited liability company,
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 NORTH
ROCKWELL,
LLC,
an Illinois limited liability company,
(“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 which
would be introduced by the parties
if a hearing were held.
The
parties further stipulat.e that this statement
of facts is made
and agreed upon for purposes of settlement only and that neither
1
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.
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.
(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 and to
legally bind them to it.
2
III. STATEMENT OF FACTS
A.
Parties
1.
On October
4,
2004,
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(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, Respondent was
and is an Illinois limited liability company that is authorized
to transact business in the State of Illinois.
B.
Site
Description
1.
At all times relevant to the Complaint, Respondent
owned a former print shop located at 2609 West Belmont,
Chicago,
Cook County,
Illinois
(“site”)
2.
On June
6,
2003,
the City of Chicago, Department of
the Environment
(“DOE”) observed three
(3)
1.5 yard garbage
dumpsters full of asbestos-containing thermal system insulation
(“TSI”)
in a secured area at the Site.
3.
On June 11,
2003,
the Illinois EPA, pursuant to
3
information provided by the DOE, observed that the lock securing
the garbage dumpster area had been cut and that only two
(2)
1.5
yard garbage dumpsters of regulated asbestos-containing material
(“RACM”)
remained at the site.
The two
(2)
1.5 yard dumpsters
contained approximately 150 cubic feet of
RACIVI.
4.
On June
11,
2003,
there was asbestos-containing TSI
and aluminum sleeves that hold TSI along the east side of the
building located at the site.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the
following provisions of the Act and Board regulations:
Count
I:
Air Pollution,
in violation of Section 9(a)
of
the Act, 415 ILCS 5/9(a) (2002),
and Section
201.141 of the Board’s Air Pollution Regulations,
35
Ill. Adm.
Code 201.141.
Count
II:
Violation of Asbestos Emission Control
Procedures,
in violation of Section
9.1(d) (1)
of
the Act,
415 ILCS 5/9.1(d) (1) (2002), and Sections
.61.145(a),
61.145(c) (1)
and
(6)
of the asbestos
NESHAP,
40 C.F.R.
61.145(a),
61.145(c) (1)
and
(6)
Count
III:
Failure to Follow
NESHAP
Renovation
Notification
Requirement,
in violation of Section 9.1(d) (1)
of
the Act, 415 ILCS 5/9.1(d) (1) (2002), and Sections
61.145(b) (1)
and
(3)
of the asbestos NESHAP,
40
C.F.R.
61.145(b) (1)
and
(3).
4
Count
IV:
Improper Disposal,
in violation of Section
9.1(d) (1)
of the Act,
415 ILCS 5/9.1(d)
(1) (2002),
and Section 61.150(b) (1)
of the asbestos NESHAP,
40 C.F.R.
61.150(b) (1)
D.
Admission
of Violations
The Respo,ndent admits to
the violations alleged in the
Complaint filed in this matter
and referenced within Section
III.C herein.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the
Complainant ~nd 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 the failure of.any of its officers,
directors,
agents,
employees or successors or assigns to take such action
as shall be required to comply with the provisions of this
Stipulation.
1.
No change in ownership or corporate status shall
in any way
alter the responsibilities of the Respondent under this
Stipulation and Proposal for Settlement.
In the event of any
conveyance of title,
easement or other interest in the site,
the
5
Respondent
shall continue to be bound by and remain liable for
performance of all obligations under this Stipulation.
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 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).(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 re.ducing or eliminating the
6
emissions,
discharges or deposits resulting from
such pollution source; and
5.
any subsequent compliance.
In response to these factors, the parties state the
following:
1.
Human health and the environment were threatened and
the Illinois EPA’s information gathering responsibilities
hindered by the Respondent’s violations.
2.
There is social and economic benefit
to the facility.
3.
Operation of the facility was suitable for the area in
which it occurred.
4.
Supplying the required information prior to renovation
activities at the site and performing renovation activities in
compliance with the Act,
regulations,
Clean Air Act and asbestos
NESHAP
is both technically practicable and economically
reasonable.
5.
Respondent has subsequently complied with the Act and
the Board Regulations.
VII. 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
7
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 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 ±of
this Section,
the non-compliance to the Agency;
and
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:
8
1.
The Respondent failed to supply the required
information prior to renovation activities at the site,
and
violated the Act, Board regulations,
Clean Air Act and asbestos
NESHAP.
The gravity of the violations is severe because of the
fact that a significant amount of
RACM
was disturbed during the
renovation exposing any and all workers to carcinogenic asbestos
fibers.
The
RACM
was observed throughout the site and in
unlined dumpsters outside of the facility.
Furthermore,
someone
removed a significant amount of
RACM
after the DOE had
identified a problem.
2.
Respondent did not act diligently by failing to adhere
to any of the asbestos
NESHAP
requirements.
However,
once
apprised of the situation,
the Respondent promptly remediated
the site.
3.
Respondent’s economic benefit from noncompliance 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 thirty-seven thousand
dollars
($37,000.00)
will serve to deter further violations and
aid in future voluntary compliance with the Act and Board
regulations.
9
5.
To Complainant’s knowledge,
Respondent has no
previously adjudicated violations of the Act.
6.
The Respondent did not self-disclose.
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 sum of
Thirty-Seven Thousand Dollars
($37,000.00)
within thirty
(30)
days from the date the Board adopts and accepts this
Stipulation.
The Respondent stipulates that payment has been
tendered to Respondent’s attorney of record in this matter in a
form acceptable to that attorney.
Further, Respondent
stipulates that said attorney has been directed to make the
penalty
payment
on behalf of Respondent, within thirty
(30)
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,
designa~tedto the Illinois Environmental Protection Trust Fund
and submitted to:
10
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 Respondent’s Federal
Employer Identification Number
(FEIN),
3t~4~O7
,
shall
appear on the check.
If submitting an electronic
funds transfer
to the Illinois EPA,
the electronic funds transfer shall be made
in accordance with specific instructions to be timely provided
to Defendant prior
to. the date of the entry of the Consent
Order.
A copy of the certified check,
money order or record of
electronic funds transfer and any transmittal letter shall be
sent to the following:
Jennifer A. Tomas
Assistant Attorney General
~
_~.-..,
.OLL..L
~
188 W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
Chris 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)
(2002),
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
11
.
(2002).
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, Respondent may
be reached at the following address:
North Rockwell,
LLC
c/o GaryL.
Plotnick, Agent
222 North LaSalle Street,
#1910
Chicago, Illinois 60601
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
12
from
Liability
contained
in
Section
VIII.D,
below,
the
Respondent hereby agrees that this Stipulation may be used
against the Respondent 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)
(2002).
Further,
Respondent
agrees
to
waive
any
rights
to
contest,
in
any
subsequent
enforcement
action
or
permit
proceeding,
any
allegations
that
these
alleged
violations
were
adjudicated.
C.
Cease
and
Desist
The
Respondent
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 III.C
(“Allegations
of
Non-Compliance”)
of
this
Stipulation.
D.
Release from Liability
In
consideration
of
the
Respondent’s
payment
of
the
$37,000.00
penalty
and
any
specified,
costs
and
accrued
interest,
to
Cease
and
Desist
as
contained
in
Section
VIII.C
and
upon
the
Pollution
Control
Board’s
acceptance
and
approval.of
the
terms
13
of this Stipulation and Proposal for Settlement,
the Complainant
releases, waives and discharges the Respondent from any further
liability or penalties for 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 October 4,
2004.
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
14
Section 3.315 of the Act,
415 ILCS 5/3.315, or entity other than
the
Respondent.
E.
Right of
Entry
In addition to any other authority,
the Illinois EPA,
its
employees and representatives,
and the Attorney General, her
agents and representatives,
shall have the right of entry into
and upon the Respondent’s site which is the subject of this
Stipulation,
at all reasonable times for the purposes of
carrying out inspections.
In conducting such inspections,
the
Illinois
EPA,
its
employees
and
representatives,
and
the
Attorney
General,
her
employees
and
representatives
may
take
photographs,
samples, and collect information,
as they deem
necessary.
F.
Correspondence,
Reports
and
Other
Documents
Any and all correspondence,
reports and any other documents
required under this Stipulation, except for payments pursuant to
Section VIII.A
(“Penalty Payment”)
of this Stipulation,
shall be
submitted as follows:
As
to
the
Complainant
Jennifer A. Tomas
Assistant
Attorney
General
Environmental Bureau
15
188
W. Randolph St.,
20th
Floor
Chicago,
Illinois 60601
Chris Pressnall
Assistant Counsel
Illinois EPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
As to the Respondent
North
Rockwell,
LLC
c/o Gary L.
Plotnick, Agent
222 North LaSalle Street,
#1910
Chicago,
Illinois 60601
David Ballinger
Horwood, Marcus
& Berk
180 North LaSalle Street,
Suite
3700
Chicago,
Illinois
60601
G.
Modification of Stipulation
The parties may, by mutual written consent, agree to modify
the terms of this Stipulation.
A request for any modification
shall be made in writing and submitted to the contact persons
identified in Section VIII.F.
Any such request shall be made by
separate document,
and shall not be submitted within any other
report or submittal required by this Stipulation.
Any such
agreed modification shall be in writing, signed by authorized
representatives of each party,
and then accompany a joint motion
to the Illinois Pollution Control Board seeking a modification
16
of the prior order approving and accepting the Stipulation to
approve and accept the Stipulation as amended.
H.
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.
Respondent agrees 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.
3.
The parties agree
that,
if the Board docs not approve
and accept this Stipulation and Proposal for Settlement, 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 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.
17
WHEREFORE,
Complainant
and
Respondent
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
BY:
/
~uS
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
WILLIAM
D.
INGERS
LL
Acting Chief Legal Counsel
NORTH ROCKWELL,
LLC
BY:
Name:_____________
Title:
DATE:
_____
DATE:
DATE:
18
CERTIFICATE
OF
SERVICE
I, JENNIFER A.
TOMAS,
an Assistant Attorney General,
certify that on the
15th
day of April 2005,
I caused to be served
by
First
Class
Mail
the
foregoing
Stipulation
and
Proposal
for
Settlement and Motion for Relief from Hearing Requirement to the
parties named on the attached Service List,
by depositing same
in
postage
prepaid
envelopes
with
the
United
States
Postal
Service located at 100 West
Randolph Street,
Chicago, Illinois
60601.
7
(~NIFER
.
TOMAS
