BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S
OrF~C
JUN102005
Complainant,
)
P~TEOF
~LLINO1S
v.
)
PCB No. 04-162
pQ.m~r’
Controt Board
)
(Enforcement)
ASBESTOS
CONTROL AND
)
ENVIRONMENTAL SERVICES CORP.,
)
an Illinois corporation,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List.
PLEASE TAKE NOTICE that on June 10, 2005, the People of the State ofIllinois filed
with the Illinois Pollution Control Board a Stipulation and Proposal for Settlement and Motion
forRelief from Hearing Requirement, true and correct copies ofwhich are attached and hereby
served upon you~
Respectfully submitted,
LISA MADIGAN
Attorney General
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
~L~c/th’~1
(~/~
BR1DGET~IVLCARLSON
Assistant Attorney General
Environmental Bureau
188 W.
Randolph Street, Suite 2001
Chicago, Illinois
60601
(312) 814-0608
THIS FILING IS SUBMITTED ONRECYCLED PAPER
SERVICE LIST
Mr. Norman V. Chimenti
Martin, Craig, Chester and Sonnenschein
2215 York Road, Suite 550
Oak
Brook, Illinois 60523
Mr.
Chris Pressnall
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois
62794-9276
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOAR~~
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
1 02005
Corn
lainant
STATE OF ILLINOIS
•
p
Pollution Control Board
v.
)
PCBNo.04-162
•
)
(Enforcement)
ASBESTOS
CONTROL AND
)
ENVIRONMENTAL SERVICES CORP.,
)
an illinois corporation,
)
)
Respondent.
)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA
MADIGAN, Attorney General ofthe State ofIllinois, and pursuant to Section 31 (c)(2) ofthe
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) ofthe Act, 415 ILCS
5/31(c)(1)(2002).
In support ofthis motion, Complainant
states as follows:
1.
The Complaint in this matter alleges violations ofSections 9(a)
and 9.1 (d)(1) of
the Act, 415
ILCS
5/9(a)
and
5/9.1(d)(1)(2002),
Section 201.141
of the Board regulations,
35 Iii.
Adm.
Code 201.141, 40 CFR 61.145(c)(3) and (c)(6), and 40
CFR
61.150(b).
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)
ofthe Act, 415 ILCS
5/31(c)(2)(2002).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board grant thismotion for relieffrom the hearing requirement set forth in Section
31(c)(1) ofthe Act, 415 ILCS
5/31(c)(1)(2002).
Respectfully submitted,
PEOPLE OF THE STATE OF
ILLINOIS
LISA MADIGAN
Attorney General
State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Divi~j~n
BY:
~44~t1i4
‘~f\~
BRID~TM. CARLSON
Assistah~tAttorney General
Environmental Bureau
188 W.
Randolph St., 20th Floor
Chicago, Illinois
60601
(312) 814-0608
DATE: June 10,
2005
THIS FILiNG IS SUBMITTED ON RECYCLED PAPER
2
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARIE
C E
~V E D
CLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
JUN
102005
Complainant,
)
STATE OF ILLINOIS
)
PCB 04-162
Pollution
Control Board
v.
)
)
(Enforcement)
ASBESTOS
CONTROL AND
)
ENVIRONMENTAL
SERVICES CORP.,
)
an Illinois corporation,
)
)
Respondent.
)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General ofthe State of Illinois, the illinois Environmental Protection Agency (“Illinois EPA”),
and Respondent, ASBESTOS
CONTROL AND ENVIRONMENTAL SERVICES CORP.
(“ACES”), have agreed to
the making ofthis Stipulation and Proposal for Settlement and submit
it to the Illinois Pollution Control Board (“Board”) for approval.
The parties agree that the
statement of facts contained hereinrepresents a fair summary ofthe evidence and testimony
which would be introduced by the parties if a hearing were held.
The parties further stipulate that
this statement offacts is made and agreed upon forpurposes ofsettlement only and that neither
the fact that a partyhas 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.
Ifthe Board approves
and enters this
Stipulation, Complainant and Respondent agree to be bound by the Stipulation and not to contest
its validity in any subsequent proceeding to implement or enforce its terms.
1
I.
J1JRISDICTION
The Board hasjurisdiction ofthe subject matterherein and ofthe parties consenting
hereto pursuant to Section
31 ofthe illinois Environmental Protection Act (“Act”), 415
ILCS
5/31
(2002).
II.
AUTHORIZATION
The undersigned representatives foreach party certify that they are fully authorized by the
party
whom they represent to enter into the terms and conditions ofthis Stipulation and to legally
bind them to
it.
III.
STATEMENT OF FACTS
A.
Parties
1.
On March
17, 2004, a Complaintwas filed on behalfofthe People ofthe State of
Illinois by Lisa Madigan, Attorney General ofthe State ofIllinois,
on her own motion and upon
the request ofthe Illinois EPA, pursuant to
Section
31 ofthe Act, 415 ILCS 5/31(2002), against
ACES.
2.
The Illinois EPA is an
administrative agency ofthe State ofIllinois, created
pursuant to
Section 4 ofthe Act, 415 ILCS 5/4
(2002).
3.
Respondent ACES was an illinois corporation qualified to do business in the State
ofillinois when the Complaint was filed.
ACES has since been involuntarily dissolved by the
2
Illinois Secretary ofState.
ACES’ principal business address is P.O. Box
945, Wheaton, Illinois.
4.
ACES is a contractor licensed by the Illinois Department ofPublic Health to
conduct asbestos abatement activities.
ACES engages in the removal and disposal ofregulated
asbestos-contained material (“RACM”) and asbestos containing waste material (“ACWM”)
generated during demolition and renovation atvarious commercial and industrial facilities.
B.
Site Description
1.
On November 21, 2002,
the Illinois EPA received from ACES a Notification of
Demolition and Renovation informing the Illinois EPA ofscheduled renovation activities at a
vacant warehouse located at 816 West
47th
Place, Chicago, Cook County,
illinois (“facility”).
The notification indicated that approximately 6600 linear feet ofpipe insulation would be
removed starting November 25, 2002,
and ending December 2,
2002.
2.
The notification stated that the building is owned by ABM LLC.
C.
Allegations of Noncompliance
Complainant contends that ACES has violated the following provisions ofthe Act and
Board Regulations:
Count I:
Air Pollution
—
Violation ofSection 9(a) ofthe Act, 415 ILCS
5/9(a)(2002),
and
35
Iii.
Adm. Code 201.141.
Count II:
Failure to Follow Proper Emission Control Procedures
—
Violation
ofSection 9.1(d)(1) ofthe Act,
415 ILCS
5/9.1(d)(1)(2002),
and 40
CFR 61.145(c)(3) and (c)(6).
3
Count ifi:
ImproperDisposal
—
Violation ofSection 9.1(d)(1) ofthe Act, 415
ILCS 5/9.1(d)(1)(2002),
and 40 CFR 61.150(b).
D.
No Admission of Violations
ACES neither admits nor denies the violations alleged in the Complaint filed in this
matter and referenced herein.
E.
compliance Activities to Date
As ofthe date offiling ofthis Stipulation, the asbestos renovation project that was the
subject ofACES’ November 21, 2002, Notification ofDemolition and Renovation has been
completed, and all ACWM and asbestos contamination found on site, inside and outside the
facilitybuilding, has been removed and disposed of.
•
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and ACES, and
any officer, director, agent, employee or servant ofACES, as well as ACES’ successors and
assigns.
ACES shall not raise as a defense to
any enforcement action taken pursuant to this
settlement the failure ofits officers, directors, agents, servants or employees to take such action
as shall be required to comply with the provisions of this settlement.
4
V.
COMPLIANCE WITH OTHER LAWS
AND
REGULATIONS
This Stipulation in no way affects the responsibilities ofACES to comply with any other
federal,
state or local laws or regulations including, but not limited to, the Act and the Board
Regulations, 35 Iii. Adm.
Code, Subtitles A through H, and the National Emission Standards for
Hazardous Air Pollutants (“NESHAP”)
for asbestos, 40
CFR 61, Subpart M.
VI.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) ofthe 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 ofthe emissions,
discharges, or deposits involved including, but not limited to:
1.
the character and degree ofinjury to, or interference with the protection of
the health,
general welfare and physical property ofthe people;
2.
the social and economic value ofthe pollution source;
3.
the suitability orunsuitability ofthe pollution source to the area in which it
is located, including the question ofpriority of location in the area
involved;
4.
the technical practicability and economic reasonableness ofreducing 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 the following:
1.
Complainant contends that human health and the environment were threatenedby
5
ACES’ violations ofACM regulations.
However, the threat ofACM
contamination was abated by the proper cleanup and disposal ofthe ACM.
2.
The asbestos abatement work that ACES performs is of social and economic
benefit, and when done in accordance with applicable statutes and regulations, is
beneficial to human health and the environment.
3.
The suitability ofACES’ operations to this location is not at issue in this matter.
4.
It is both technically practicable and
economicallyreasonable for ACES to follow
workpractices and procedures to properly handle, remove and
dispose ofRACM
and ACWIVI in compliance with all applicable provisions ofthe Act, the Board
Air Pollution Regulations and 40 CFR 63, Subpart M.
5.
ACES has subsequently complied with the Act, Board Regulations and NESHAP
for asbestos at the subject facility.
VII.
CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) ofthe Act, 415 LCS
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 ofrecord in mitigation or aggravation of
penalty, including but not limited to the following factors:
1.
the duration and gravity ofthe violation;
2.
the presence or absence ofdue diligence on the part ofthe violator in
attempting to comply with requirements ofthis Act and regulations
thereunder orto
secure relieftherefrom as provided by this Act;
•
3.
any economic benefits accrued by the violator because ofdelay in
6
compliance with requirements;
4.
the amount ofmonetary penalty which will serve to
deterfurther violations
by the violator and to otherwise aid in enhancing voluntary compliance
with this Act by the violatér and otherpersons similarly subject to the Act;
and
5.
the number, proximity in time, and gravity ofpreviouslyadjudicated
violations ofthis Act by theviolator.
In response to these factors, the parties state as follows:
A
significant amount ofRACM was disturbed during the renovation ACES
performed at the facility.
However, the removal area was under containment and
the workers were wearingpersonal protective equipment.
The illinois EPA
inspection during which the alleged violations were
discoveredwas conducted on
December 19,
2002.
On or about March 29, 2003, ACES submitted to the illinois
EPA copies of worker licenses, daily logs, clearance analyses and waste shipment
records forthe project.
The duration ofthe alleged violations at issue lasted for
one day.
2.
Complainant asserts that ACES did not act diligently in that it failed to ensure that
all RACM was wetted prior to removal.
ACES did returnto compliance once the
alleged violations were brought to its
attention.
3.
Respondent’s economic benefit from alleged non-compliance was nominal and
thepenalty obtained includes any economic benefit received.
4.
Complainant has determined that a penalty ofTwentyThousand Dollars
($20,000.00) will serve to deter violations and
aid in future voluntary compliance
with the Act, Board Air Pollution Regulations and asbestos NESHAP.
7
5.
To Complainant’s knowledge, ACES has no previously adjudicated violations of
the Act, Board regulations or asbestos NESHAP.
VIII.
TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum ofTwenty Thousand Dollars
($20,000.00) within one hundred (100) days from the date the Board adopts and accepts this
Stipulation.
Within seven days ofentry ofthe stipulation and proposal for settlement with the
Board, ACES will pay $7,500 ofthe total penalty amount.
Thirty days thereafter, ACES will
remit an additional
$2,500,
thirty days thereafter, ACES will remit
an additional
$2,500,
thirty
days thereafter, ACES will remit the final
$7,500.
The Respondent stipulates that the first payment has been tendered to Respondent’s
attorney ofrecord in this matter in
a form acceptable to that attorney.
Further, Respondent
stipulates that said attorney has been directed to make the first penalty payment on behalfof
Respondent, within seven (7) 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 shall be sent overnight mail to:
Illinois Environmental Protection Agency
Fiscal Services Section
1021
North Grand Avenue East
P.O. Box
19276
Springfield, IL 62794-9276
8
The name and number ofthe case and ACES’ Federal Employer Identification Number, 36-
3618977, shall appear on the check.
A copyofthe certified check or money order arid the
transmittal letter shall be sent to:
Ms. Bridget M. Carison
Assistant Attorney General
Environmental Bureau
188
W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
2.
Pursuant to Section 42(g) ofthe Act, 415 ILCS
5/42(g)
(2002), interest shall
accrue on any payment not paid within the time period prescribed above at the maximumrate
allowable under Section 1003(a) ofthe Illinois Income Tax Act, 35 ILCS
5/1003 (2002).
Interest
on any unpaid payment shall beginto 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 or moneyorder, payable to the Illinois
Environmental Protection Agency, designated to the Environmental Protection Trust Fund and
delivered to the address and in the manner described above.
3.
For purposes ofpayment and collection, ACES may be reached at the following
address:
Mr. Norman V. Chimenti
Martin, Craig, Chester and Sonnenschein
2215 YorkRoad,
Suite
550
Oak Brook, illinois
60523
4.
Inthe event ofdefault, the Complainant shall be entitled to all
available relief
including, but not limited to, reasonable costs ofcollection and reasonable attorney’s fees.
9
B.
Future Use
Notwithstanding any other language in this Stipulation to the contrary, this Stipulation
maybe used against ACES in any subsequent enforcement action as evidence of a past
adjudication ofviolation ofthe Act and the Board Regulations promulgated thereunder, for
purposes of Section
39(1) and/or 42(h) ofthe Act,
415
ILCS 5/39(i)
and/or
5/42(h)(2002).
C.
Cease and Desist
ACES shall cease and desist from
future
violations ofthe Act and Board Regulations,
including but not limited to those sections ofthe Act and Board Regulations that were the subject
matter ofthe Complaint as outlined in Section ffi.C. ofthis Stipulation.
D.
Release from Liability
In consideration ofACES’ payment ofthe Twenty Thousand Dollar ($20,000.00) penalty
and any specified costs and accrued interest, and to Cease and Desist as contained in
Section
V111.C and upon the Pollution Control Board’s acceptance and approval ofthe terms ofthis
Stipulation and Proposal for Settlement, the Complainant releases, waives and discharges ACES
from any further liability or penalties for violations ofthe Act, Board Regulations or asbestos
NESHAP that were the subject matter ofthe Complaint herein.
The release set forth above does
not extend to
any matters other than those expressly specified in Complainant’s Complaint filed
on March
17, 2004.
The Complainant reserves, and this Stipulation and Proposal for Settlement
is without prejudice to, all rights ofthe State ofillinois againstACES with respect to all other
10
matters, including but not limited to, the following:
a.
criminal
liability;
b.
liability for future violation ofstate, federal,
local, and common laws
and/or
regulations;
c.
liability for natural resources damage arising out ofthe 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 ofaction,
administrative orjudicial, civil or criminal, past or future, in
law or in equity, which the State ofIllinois
orthe Illinois EPA may have against any person, as
defined by Section 3.315 ofthe Act, 415 ILCS 5/3.315, or entity other thanthe Respondent.
E.
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”) ofthis
Stipulation shall be submitted as follows:
As to the Complainant
Ms. Bridget Carlson
Assistant Attorney General
Environmental Bureau
188 W.
Randolph St.,
20th
Floor
Chicago, illinois 60601
11
As to the Respondent
Mr. Norman V. Chimenti
Martin, Craig, Chester and Sonnenschein
2215 YorkRoad, Suite
550
Oak Brook, illinois
60523
F.
Enforcement of Board
Order
1.
Upon the entry ofthe Board’s Order approving and accepting this
Stipulation and
Proposal for Settlement, that Order is a binding and enforceable order ofthe illinois Pollution
Control Board and maybe enforced as such through any and all available means.
2.
Respondent agrees that notice ofany subsequent proceeding to
enforce the Board
Order approving and accepting this Stipulation and Proposal for Settlement maybe made by mail
and waives any requirement ofservice ofprocess.
3.
The parties agree that,
if the Board does not approve and accept this
Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein.
4.
It is the intent ofthe Complainant and Respondent that the provisions ofthis
Stipulation and Proposal for Settlement and any Board Order accepting and approving such shall
be severable, and should any provision be declaredby a court ofcompetentjurisdiction to be
inconsistent with state or federal law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect.
12
WHEREFORE,
Complainant and Respondent request that the Board adopt and acceptthe
foregoing Stipulation and Proposal for Settlement as written.
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of illinois
MATTHEW
3. DUNN, Chief
Environmental Enforcement!
Asbest
~tigationDivision
BY:
~,
.
~DATE:
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
BY:
~ZM
~
DATE:/ZZ~
//
2a~7S
WILLIAM INGERSOL
Acting Chief Legal Counsel
ASBESTOS CONTROL
AND
ENVIRONMENTAL
SERVICES CORP.
BY:
/49
C?~4~
/t
DATE:L~4A
Name:
Daniel
T.
Coyne
Title:
President
13
CERTIFICATE OF
SERVICE
I, BRIDGET M. CARLSON, an Assistant Attorney General, certify that on the
10th day
of June 2005, I causedto 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 withthe United States
Postal Service located at
100 West Randolph Street, Chicago, Illinois 60601.
BRIDG~M. CARLSON
