BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
cx i-el.
LISA MADIGAN, Attorney
General of the State of Illinois,
MARC REALTY, INC., an Illinois
corporatiOn, 11 EAST ADAIVIS, L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC., an Illinois
corporation,
Respondents.
Complainant,
V.
REC~\,EO
CLERK’S OFFICE
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APR 29 2005
STATE OF ILLINOI3
P~lI~tj~~Control Board
PCB 04-100
(Enforcement -Air)
TO:
Edward L. Filer
Darrell R. Bertram
FagelHaber LLC
55 East Monroe,
40th
Floor
Chicago, Illinois 60603
NOTICE OF FILING
PLEASE TAKE NOTICE that I have today filed with the Office of the
Clerk of the Pollution Control Board the Stipulation and Proposal for
Settlement with Respondent Roberts Environmental Control, Inc., and
Motion for Relief from Hearing Requirement a copy oL..which is herewith
served upon you.
Office of the Attorney General
Environmental Bureau
188 W. Randolph Street, 20~Floor
Chicago, Illinois 60601
312 814-3532
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
cx i-el.
LISA MADIGAN, Attorney
APR 292005
Genera, of the State of Illinois,
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
v.
)
PCB 04-100
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporation, 11 EAST ADAMS, L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC., an Illinois
corporation,
Respondents.
STIPULATION AND PROPOSAL FOR SETTLEMENT WITH
RESPONDENT ROBERTS ENVIRONMENTAL CONTROL, INC.
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN,
Attorney General of the State of Illinois, on her own motion, and at
the request of the Illinois Environmental Protection Agency (“Illinois
EPA”), and Respondent, ROBERTS ENVIRONMENTAL CONTROL, INC. (“Settling
Respondent” or “ROBERTS”), do hereby submit this Stipulation and
proposal for Settlement. The parties agree that the Complainant’s
statement of facts contained herein is agreed to only for the purposes
of settlement. The parties further state that neither the fact that a
party has entered into this stipulation, nor any of the facts
stipulated herein, shall be admissible into evidence, or used for any
purpose in this, or any other proceeding, except to enforce the terms
hereof, by the parties to this agreement. Notwithstanding the
previous sentence, this Stipulation and Proposal for Settlement, and
any Illinois Pollution Control Board (“Board”) order accepting same,
may be used as evidence of a past adjudicated violation of the Act as
1
alleged herein, pursuant to Section 42(h) of the Illinois
Environmental Protection
Act (“Act”), 415 ILCS 5/42(h) (2002), in
determining appropriate civil penalties for any future violations of
the Act. This Stipulation may also be used in any permitting action
for the purposes of Section 39(i) of the Act, 415 ILCS 5/39(1) (2002).
This Stipulation and Proposal for Settlement shall be null and void
unless the Board approves and disposes of this matter on each and
every one of the terms and conditions of the settlement set forth
herein.
I.
JURISDICTION
The Board has jurisdiction of the subject matter herein and of
the parties consenting hereto pursuant to the 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 Proposal for
Settlement and to legally.bind them to it.
III.
APPLICABILITY
This Stipulation and Proposal for Settlement shall apply to, and
2
be binding upon, the Complainant and Settling Respondent, and any
officer, agent, employee or servant of Settling Respondent, as well as
the Settling Respondent’s successors and assigns. Settling Respondent
shall not raise as a defense to any enforcement action taken pursuant
to this settlement the failure of its officers, directors, agents,
servants or employees to take such action as~shall be required to
comply with the provis±oi~sof this settlement. The terms of this
Stipulation and Proposal for Settlement and the release contained
herein are applicable only to the signatories of this Stipulation and
Proposal for Settlement.
Iv.
STATEMENT OF FACTS
1. 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), and is charged,
inter alia,
with the duty of enforcing the
Act.
2. Settling Respondent was installing a heating ventilation and
air conditioning system at a building located at 11 East Adams Street,
Chicago, Cook County, Illinois (“facility”) in August 2002.
The facility was operated and owned by Marc Realty, Inc. and 11 East
Adams, LLC.
3. On August 7, 2002, the Illinois EPA conducted an inspection
to determine compliance with regulations applicable to the management
of asbestos during renovation activities. Some of the other floors of
the building were occupied by tenants at the time of the renovation.
3
4. The Illinois EPA observed the presence of possible asbestos
containing
materials on the ceiling in the form of spray-on
fireproof ing on the fourth floor during the inspection. Disturbed
asbestos containing materials were also observed on the floor.
Samples taken by the Illinois EPA during the inspection established
the presence of asbestos. The Illinois EPA determined the existence
of violations of provisions of the Environmental Protection Act and
the National Emissions Standards for Hazardous Air Pollutants.
5. ROBERTS was present on the fourth floor at the time of the
inspection installing a heating, ventilation and air conditioning
system.
6. After the inspection, Marc Realty, Inc. and 11 East Adams,
LLC provided for the asbestos abatement of the fourth floor before
renovation work recommenced and performed asbestos cleaning activities
on other floors of the facility.
7. On, May 25, 2004 the Complainant and respondents Marc
Realty, Inc. and 11 East Adams, L.L.C. filed a Stipulation and
Proposal for Settlement in this case. The Board issued an order
accepting the Stipulation and Proposal for Settlement on July 22,
2004. That settlement resolved the liability of Marc Realty and 11
East Adams LLC, but did not address the liability of co-respondent
ROBERTS.
V.
VIOLATIONS
The Complaint alleges the following violations:
4
Count I: AIR POLLUTION Violation of Section 9(a) of the Act, 415 ILCS
5/9(a) (2002), and 35 Ill. Adm. Code 201.141. Respondents caused,
threatened or allowed air pollution in the State of Illinois.
Count II: FAILURE TO COMPL~WITH NATIONAL EMISSIONS STANDARDS FOR
HAZARDOUS AIR POLLUTANTS Violation of Section 9.1(d) of the Act and
40 C.F.R.
§
61.145(a), (b), (c) (1), (6) & (8) (2002); and, 40 C.F.R.
§
61.150(b) (2002).
VI.
NATURE OF RESPONDENTS’ OPERATIONS
Settling Respondent conducts a heating, ventilation and air
conditioning contracting business.
VII.
EXPLANATION OF PAST FAILURES TO COMPLY
1. On September 13, 2002, the Illinois EPA issued a violation
notice to Respondents MARC REALTY, INC. and ROBERTS advising them of
violations
observed at the facility during the inspection. The
alleged violations included the failure to notify the Illinois EPA of
a regulated renovation activity, failure to sufficiently remove
asbestos prior to conducting the renovation activity, failure to keep
asbestos containing
materials wet, failure to provide properly trained
personnel, failure to timely dispose of asbestos containing waste
material and causing, threatening or allowing air pollution. The
alleged violations included violations of provisions of the
5
Environmental
Protection Act and the National Emissions Standards for
Hazardous Air Pollutants.
2. 11 EAST
ADAMS,
L.L.C. submitted a response to the violation
notice on October 31, 2002. In its response, 11 EAST ADAMS, L.L.C.
expressed regret over the incident and asserted that the contractor
and its employees that caused the release were experienced in handling
asbestos and were aware of its presence. The Illinois EPA issued a
rejection of a compliance commitment agreement to 11 EAST ADAMS,
L.L.C. by letter of November 15, 2002. ROBERTS did not respond to the
violation notice.
3. On November 13, 2003, the Illinois EPA issued a notice of
intent to pursue legal action against both
MARC
REALTY, INC. and
ROBERTS.
VIII.
FUTURE PLANS OF COMPLIANCE
Settling Respondent shall comply with all requirements of the
Act, 415 ILCS 5/1
et seq.
(2002)
,
and the Illinois Pollution Control
Board Regulations, 35 Ill. Adm. Code Subtitles A through H.
IX.
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,
6
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 thd area in which
it is located, including the questions
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 as follows:
1. The impact to the public resulting from Respondent’s
noncompliance was that mismanagement of asbestos can also result in
the public being exposed to levels of airborne asbestos that may
threaten human health.
2. The facility that is the subject of the Complaint has social
and economic value.
3.
The facility that is the subject of the Complaint is
suitable to the area in which it is located.
4. Complying with the requirements of the Act and the Board
Regulations is both technically practicable and economically
reasonable.
5. The facility was brought into compliance by abatement of the
asbestos prior to recommencing renovation activities and cleaning
7
other areas of the facility.
X.
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 subdivisions (a), (b) (1),
(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:
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 the
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 violator and to otherwise aid in
enhancing voluntary compliance with
this Act by the respondent 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
respondent.
6. whether the respondent voluntarily
8
self-disclosed, in accordance with
subsection (i) of this Section, the
non-compliance to the Agency;
7. whether the respondent has agreed to
undertake a “supplemental environmental
project,
TI
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:
1. Complainant contends that the violations that are the
subject of the Complaint occurred over the period of at least one
week.
2. Complainant contends that the Settling Respondent was not
diligent in disturbing asbestos materials during the installation of
heating, ventilation and air conditioning equipment.
3. The Settling Respondent derived no material economic benefit
from the violations. The penalty of $7,500.00 is greater than any
economic benefit arising from the violations.
4. The settling parties believe that a civil penalty of
$7,500.00 will deter Settling Respondent from committing further
violations, and will aid in enhancing voluntary compliance by Settling
Respondent and others similarly subject to the Act.
5. The State is not aware of anyother adjudicated violations
of the Act by Settling Respondent.
6. Settling Respondent did not meet the requirements of Section
42(h) (6) of the Act, 415 ILCS 5/42(h) (6) (2002).
7. Respondent is not performing a Supplemental Environmental
9
project pursuant
to Section 42(h) (7) of the Act, 415 ILCS
5/42(h) (7) (2002)
XI.
TERMS OF SETTLEMENT
1. The Settling 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
e’xpense of contested litigation. By entering into this Stipulation
and Proposal for Settlement and complying with its terms, the Settling
Respondent does not affirmatively admit the allegations of violation
within the Complaint, and this Stipulation and Proposal for Settlement
shall not be interpreted as including such admission.
2. Settling Respondent
shall pay a civil penalty of $7,500.00
into the Environmental Protection Trust Fund within thirty (30) days
after the date the Board adopts a final opinion and order approving
this Stipulation and Proposal for Settlement. Payment shall be made
by certified check or money order, payable to the Illinois
Environmental Protection Agency, designated to the Illinois
Environmental Protection Trust Fund, and shall be sent by first class
mail to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
IL 62794
A copy of the check shall be sent to:
Christopher P. Perzan
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, 20th Floor
10
Chicago, IL 60601
Settling Respondent shall write the case caption and number, and its
Federal Employer Identification Number (“FEIN”)
3~j
~yfl1fl~71,upon
the
certified
check or money order.
3. For purposes of payment and collection, the Settling
Respondent may be reached at the following address:
James Wasniewski
7410 Duvan Drive
Tinley Park, Illinois 60477
4. Pursuant to Section 42(g) of the Act, 415 ILCS
4/42(g) (2002), interest shall accrue on any amount not paid within the
time period prescribed herein, at the maximum rate allowable under
Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003 (a)
(2002)
a. Interest on unpaid amounts shall begin to accrue from
the date the penalty is due and continue to accrue to the date payment
is received.
.
b. Where partial payment is made on any payment amount
that is due, such partial payment shall be first applied to any
interest on unpaid amounts then owing.
c. All interest on amounts owed the Complainant, shall be
paid by certified check payable to the Illinois Environmental
Protection Agency for deposit in the Environmental Protection Trust
Fund and delivered in the same manner as described in Section XI.2.
herein.
.
.
5. Settling Respondent shall cease and desist from future
violations
of the Act and Board Regulations, including but not limited
11
to those sections of the Act and Board Regulations that were the
subject matter of the Complaint as outlined in Section V of this
Stipulation and Proposal for Settlement.
XII.
COMPLIANCE WITH OTHER LAWS
AND
REGULATIONS
This Stipulation and Proposal for Settlement in no way affects
the settling Respondent’s responsibility to comply with any federal,
state or local laws and regulations.
XIII.
RELEASE FROM LIABILITY
In consideration of the Respondents’ payment of a $7,500.00 civil
penalty and its commitment to refrain from further violations of the
Act and the Board Regulations, upon receipt by Complainant of the
payment required by Section XI of this Stipulation, the Complainant
releases, waives and discharges Settling Respondent and its officers,
directors, employees, agents, successors and assigns from any further
liability or penalties for violations which were the subject matter of
the Complaint herein. However, nothing in this Stipulation and
Proposal for Settlement shall be construed as a waiver by Complainant
of the right to redress future violations or obtain penalties with
respect thereto.
The remainder of this page intentionally left blank.)
12.
WHEREFORE, Complainant and Settling Respondent request tha.t the
Board adopt and accept the foregoing Stipulation and Proposal for
Settlement as written.
AGREED:
FOR THE COMPLAINANT:
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
By:
Envi~onmentaT Bureau
Assist~nt1Attq~neyGeneral
Dated: •~)(~7~./o
S
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By:
WILLIAM D. INGERS LL
Acting Chief Legal Counsel
Division of Legal Counsel
Dated:
________
2 ~~OOS~
FOR THE SETTLING RESPONDENTS:
ROBERTS ENVIRONMENTAL CONTROL,
INC.
By
:
Its:
13
BEFORE THE ILLINOIS POLLUTION CONTROL B~I~CE~VED
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
cx
i-el.
LISA MADIGAN, Attorney
APR 292005
General of the State of Illinois,
STATE OF ILLINOIS
Complainant,
)
Pollution Control Board
v.
)
PCB 04-100
(Enforcement-Air)
MARC REALTY, INC., an Illinois
corporatiOn, 11 EAST ADAMS, L.L.C.,
an Illinois Limited Liability
Company, and ROBERTS ENVIRONMENTAL
CONTROL, INC., an Illinois
corporation,
Respondents.
MOTION TO REQUEST RELIEF
FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MAJIGAN, 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 December 22, 2003, a Complaint was filed with the
Pollution Control Board (“Board”) in this matter. Simultaneously with
this Motion, the Complainant and Respondents ROBERTS ENVIRONMENTAL
CONTROL, INC., (“Settling Respondent”) are filing a Stipulation and
Proposal for Settlement with the Board.
2. Section 31(c) (2) of the Illinois Environmental Protection
Act (“Act”)
,
415 ILCS 5/31 (c) (2)
,
(2002) 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 31(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
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
31(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 415 ILCS
5/31
(c) (2) (2002).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of the
State of IlL
By:
Office of the Attorney General
Environmental Bureau
188 West Randolph Street,
~ ~
Chicago, IL 60601
312/814-3532
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached
Stipulation and Proposal for Settlement with Respondents Roberts
Environmental Control, Inc., and Motion for Relief from Hearing
Requirement, by depositing the same in the United States Mail, postage
fully prepaid, upon the following persons:
Edward L. Filer
Darren R. Bertram
FagelHaber LLC
55 East Monroe,
40th
Floor
Chicago, Illinois 60603
Date: April 29, 2005
