BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
by LISA MADIGAN, Attorney)
General of the State of Illinois,)
Complainant,)
V.
)
PCB No. 06-27
JOEL HILLMAN, individually,
)
(Enforcement
-
Air)
Respondent.)
NOTICE OF FILING
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
PLEASE TAKE NOTICE that I have
filed
with the Office of the Clerk of the Illinois
Pollution Control Board by electronic filing Complainant's Motion to Deem Facts
Admitted and for Summary Judgment, a copy of which is attached herewith and served upon
you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
State of Illinois
BY:
STEPA NJ. SY~VSE
Assistant Attorney General
Environmental Bureau
188 W. Randolph St.,
20th
Floor
Chicago, Illinois 60601
312-814-2087
DATE: November 23, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
SERVICE LIST
Mr. Joel Hiliman
3000 Island Blvd Apt 2003
Aventura, Florida
33160
AND
15 Franklin Avenue
Quiogue, NY 11978
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
1
00 W. Randolph, Room
11 -500
Chicago, Illinois
60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,)
by LISA MADIGAN, Attorney)
General of the State of Illinois,)
Complainant,)
V.
)
PCB No. 06-27
JOEL HILLMAN, individually,
)
(Enforcement
-
Air)
Respondent.)
MOTION TO DEEM FACTS ADMITTED AND FOR SUMMARY JUDGMENT
Now comes the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Sections 103.204 and
101.516 of the Board's Procedural Rules, 35 Ill. Adm. Code 103.204 and 101.516, and the
September 22, 2005 Hearing Office Order in this cause, hereby moves for the entry of an order
deeming all material facts in Complainant's Complaint as admitted against Respondent, JOEL
HILLMAN, as to Counts I, II, III, and IV of the Complaint.
Further, Complainant moves this
Illinois Pollution Control Board ("Board") for Summary Judgment as to Counts I, II, III, ahd IV
of the Complaint against Respondent, JOEL HILLMALN.
In support the reof, Complainant states
as follows:
1.
On August 24, 2005, the Complainant filed its Complaint against Respondent,
JOEL HILLMAN ("Hillman").
Complainant alleged violations of Sections 9(a) and 9.1(d) of
the Illinois Environmental Protection Act ("Act"), 415 ILCS
5/9(a)
and 9. 1(d) (2004), Section
201.141 of the Board Air Pollution R~egulations, 35 11 1. Adm. Code 201.14 1, and Sections
61.145(b), (c)(1), and (c)(6), and 61.150(b) of the U.S. EPA's NESHAPs, 40 C.F.R. 61.145(b),
(c)(1), and (c)(6), and 61.150(b).
Specifically, the Complaint alleges Air Pollution, Failure to
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
Follow Proper Notification Requirements, Failure to Follow Proper Emission Control
Procedures, and Improper Disposal of Regulated Asbestos Containing Materials ("RACM").
2.
On September 21, 2005, Complainant filed its Proof of Service of the August 24,
2005 Complaint with the Board.
3.
The Hearing Officer's Order of September 22, 2005, required Respondent to
answer the Complaint within 60 days from the date of the Hearing Officer's Order, that being on
or before November 15, 2005.
4.
As of the date of the filing of this Motion, Respondent has not filed an answer,
nor otherwise pled, to the Complaint.
5.
Section 103.204(d) and (e) of the Board's Procedural Rules, 35 Ill. Adm. Code
103. 204(d) and (e), provides as follows:
d)
Except as provided in subsection (e) of this Section, the respondent may file an
answer within 60 days after receipt of the complaint if respondent wants to deny
any allegations in the complaint. All material allegations of the complaint will be
taken as admitted if no answer is filed or if not specifically denied by the answer,
unless respondent asserts a lack of knowledge sufficient to form a belief. Any
facts constituting an affirmative defense must be plainly set forth before hearing
in the answer or in a supplemental answer, unless the affirmative defense could
not have been known before hearing.
e)
If the respondent timely files a motion under Section 103.212(b) or 35 III. Adm.
Code 101.506, the 60-day period to file an answer described in subsection (d) of
this Section will be stayed. The stay will begin when the motion is filed and end
when the Board disposes of the motion.
6.
By failing to answer the Complaint by November
15,
2005 and by failing to file a
motion staying the 60-day period in which to file an answer as required by Section 103.204(d)
and (e) of the Board's Procedural Rules, 35 III. Adm. Code 103. 204(d) and (e), Respondent has
admitted the material allegations asserted in the Complaint.
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
7.
Complainant therefore requests that the Board enter an order finding that pursuant
to Section 103.204(d) and (e) of the Board's Procedural Rules, 35 Ill. Adm. Code 103. 204(d)
and (e), Respondent has admitted all material allegations asserted in the Complaint.
8.
Complainant's Complaint sufficiently states facts establishing the following
violations of the Act, Board Air Pollution Regulations, and the U.S. EPA's NESHAPs
Regulations against Respondent:
Count I:
Air Pollution: Violation of Section 9(a) of the Act, 415 ILCS
5/9(a)
(2004), and Section 201.141 of the Board Air Pollution
Regulations, 351Ill. Adm. Code 201.141;
Count II:
Failure To Follow Proper Notification Requirements: Violation of
Section 9. 1(d) of the Act, 415 ILCS 5/9. 1(d) (2004), and Section
61.145(b) of the U.S. EPA's NESHAPs Regulations, 40 CFR
61. 145(b);
Count III:
Failure to Follow Proper Emission Control Procedures: Violation
of Section 9. 1(d) of the Act, 415 ILCS 5/9. 1(d) (2004), and Section
61.145(c)(1), and (c)(6) of the U.S. EPA's NESHAPs Regulations,
40 CFR 61.145(c)(1), and (c)(6); and
Count IV:
Improper Disposal Of Regulated Asbestos Containing Mater ials:
Violation of Section 9.1(d) of the Act, 415 ILCS 5/9.1l(d) (2004),
and Section, 61. 150(b)(1) of the U.S. EPA's NESHAPs
Regulations, 40 CFR 61.150(b).
9.
Section 101.5 16(b) of the Board's Procedural Regulations, 35
111. Adm. Code
101.5 16(b), provides as follows:
b)
If the record, including pleadings, depositions and admissions on file, together
with any affidavits, shows that there is no genuine issue of material fact, and
that the moving party is entitled to judgment as a matter of law, the Board will
enter summary judgment.
10.
If the Board finds that Respondent has admitted all material allegations in
Complainant's Complaint, then the record shows that there is no issue of material fact remaining
for review.
Therefore, pursuant to Section 101.5 16(b) of the Board's Procedural Regulations, 35
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
Ill. Adm. Code 101.516(b), Complainant is entitled to summary judgment in its favor as a matter
of law.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board issue an order in favor of Complainant and against Respondent, JOEL
HILLMAN, individually, as follows:
I1.
Ordering all material allegations in the Complaint admitted against Respondent;
2.
Finding that Respondent violated Sections 9(a) and 9. 1(d) of the Act, 415 ILCS
5/9(a) and 9. 1(d) (2004), Section 201.141 of the Board Air Pollution Regulations, 35 111. Adm.
Code 201.141, and Sections 61.145(b), (c)(1), and (c)(6), and 61.150(b) of the U.S. EPA's
NESHAPs, 40 C.F.R. 61.145(b), (c)(1), and (c)(6), and 61.150(b);
3.
Granting summary judgment in favor of Complainant and against Respondent on
Counts I through IV of the Complaint.
REMEDY
The September 1, 2005 Board Order in this cause provides, in pertinent part, as follows:
Accordingly, the Board further directs the hearing officer to advise the parties that in
summary judgment motions and responses, at hearing, and in briefs, each party should
consider: (1) proposing a remedy for a violation, if any (including whether to impose a
civil penalty), and supporting its position with facts and arguments that address any or all
of the Section 33(c) factors; and (2) proposing a civil penalty, if any (including a specific
total dollar amount and the portion of that amiounit attributable to the respondent's
economic benefit, if any, from delayed compliance), and supporting its position with
facts and arguments that address any or all of the Section 42(h) factors...
Pursuant to the September 1, 2005 Board Order, Complainant is proposing a remedy for
Respondent's violations of Sections 9(a) and 9. 1(d) of the Act, 415 ILCS
5/9(a)
and 9.1 (d)
(2004); Section 201.141 of the Board Air Pollution Regulations, 35
III. Adm. Code 201.141, and
Sections 61.145(b), (c)(1), and (c)(6), and 61.150(b) of the U.S. EPA's NKESHAPs, 40 C.F.R.
61.145(b), (c)(1), and (c)(6), and 61.150(b), and states as follows:
Impact on the
Public
Resulting from Respondent's Alleged Non-Compliance
Section 33(c) of the Act, 415 ILCS 5/33(c) (2004), 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:
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
1.
the character and degree ol~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 Complainant states the following:
1
.
The impact to the public resulting from Respondent's failure to adhere to the
work practice standards of the asbestos NESHAPs in connection with regulated building
renovation activities resulted in the emission of asbestos fibers, a known carcinogen, which
threatened humari health and the environment, especially the workers on site and the nearby
neighborhood.
In addition, the Illinois Environmental Protection Agenicy ("Illinois EPA") and
the public were not privy to information that is important to the control of air pollution in
Illinois, because no notification of renovation activities was received by the Illinois EPA, prior to
the commencement of renovation activities at 133-135 Park Avenue, Barrington, Lake County,
Illinois ("Site").
2.
The Buildings at the Site, which are the subject of the Complaint, have social and
economic value.
3.
The Buildings at the Site, w'hich are the subject of the Complaint, are suitable to
the area in which they are located.
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
4.
Complying with the applicable prdvisions of the Act, the Board's Air Pollution
Regulations and the U.S. EPA's NESHAPs Regulations is both technically practicable and
economically reasonable.
5.
Complainant states that Respondent has subsequently complied with the Act, the
Board Regulations, and the U.S. EPA's NESHAPs Regulations.
A civil penalty should be assessed against Respondent because of the potentially severe
impact the exposure to asbestos, a known carcinogen, had on human health and environment.
Explanation of Civil Penalties Requested
Section 2(b) of the Act, 415 ILCS 5/2(b) (2004), provides:
It
is
the
purpose of this
Act,
as
more
specifically
described
in
later
sections,
to
establish
a unified,
state-wide
program
supplemented
by
private
remedies,
to
restore,
protect
and
enhance
the
quality
of the
environment,
and to assure that adverse effects upon the environment are
fully considered and borne by those who cause them.
(emphasis added)
The principal reason for penalties for violations of the Act is to aid in enforcement.
Punitive considerations are secondary.
Tni-County Landfill Company v. Illinois Pollution
Control Board,
41 Ill.App.3d 249, 353 N.E.2d 316, 325 (2nd Dist. 1976).
Section 42(a) of the Act, 415 ILCS 5/42(a) (2004), provides in pertinent part, as follows:
a)
Except
as provided
in this Section,
any person
that
violates any
provision of this Act or any regulation adopted by the Board, or
any permit or term or condition thereof, or that violates any order
of the Board pursuant to this Act, shall be liable for a civil penalty
of not to exceed $50,000 for the violation
and an additional
civil
penalty of not to
exceed $10,000
for each day during which the
violation continues;
If the Board finds that Respondent violated the statutory and regulatory provisions
alleged in Counts I through IV of the Complaint, using October 27, 2003, the date when
Respondent directed the removal of asbestos containing floor tile and thermal insulation from the
buildings at the Site, continuing to July 17, 2004, when the regulated asbestos containing
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
material ("RACM") in the parking lot at the Site was finally remediated, the maximum statutory
penalty that Section 42 of the Act, 415 ILCS 5/42 (2004) authorizes for those violations is
$8,0280,000, including the penalty for continuing violations of $1
0,000 per day.
Penalties for violations of the Act and regulations are calculated according to the formnula
contained in Section 42(a), 415 ILCS 5/42(a) (2004). The statutory maximum is calculated as
follows:
Count I
I violation of Section 9(a)
$ 50,000
I violation of Section 201.141
50,000
2 violations continuing 266 days
5,320,000
Count
II
1 violation of Section 9.1I(d)/40 C.F.R. 61.145(b)
50,000
Count III
1 violation of Section 9.1(d)/40 C.F.R. 61.145(c)(1)
50,000
I violation of Section 9. 1(d)/40 C.F.R. 61.145(c)(6)
50,000
Count I
I
violation of Section 9. 1(d)/40 C.F.R. 61.150(b)
50,000
1 violation continuing 266 days
2,660,000
Total
$8,280,000
Consideration of Section 42(H) Factors
Section 42(h) of the Act, 415 ILCS 5/42(h) (2004), provides:
In determining the appropriate
civil penalty to be imposed under
....
the
Board
is authorized
to consider any matters
of record
in mitigation
or,
aggravation of penalty, including but not limited to the following factors:
I1.
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
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
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
violator
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 violator.
6.
whether the
respondent
voluntarily
self-disclosed,
in
accordance
with
Subsection
(i) 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 Complainant states as follows:
1
.
The duration of the violations that are the subject of the Complaint are alleged by
Complainant to have occurred from approximately October 27, 2003 to July 17, 2004.
The
gravity of the alleged violations is severe, as a significant amount of RACM was disturbed
during the renovation of the buildings at the Site, exposing any and all workers to carcinogenic
asbestos fibers.
Furthermore, Respondent allowed RACM to remain in the parking lot at the Site
until July 17, 2004, potentially exposing persons in the neighborhood to the potentially severe
health effects of carcinogenic asbestos fibers.
2.
Respondent did not act diligently in this matter, as evidenced by his failure to
ensure that all RACM was abated from the buildings at the Site prior to the commencement of
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
renovation activities.
Additionally, the RACM in the parking lot at the Site was not remediated
until July 17, 2005, over 8 months after the Illinois EPA inspected the Site.
3
3.
Respondent accrued a nominal economic benefit by delaying proper abatement of
asbestos containing materials prior to commencing renovation activities at the Site.
4.
Complainant states that a maximum civil penalty payment of $8,280,000 will
serve to deter further violations by Respondent and to otherwise aid in enhancing voluntary
compliance with the Act, Board Regulations, and the U.S. EPA's NESHAPs Regulations by
Respondent and other persons similarly subject to the Act, Board Regulations, and the U.S.
EPA's NESHAPs Regulations.
5.
To Complainant's knowledge, Respondent has had no previously adjudicated
violations.
6.
Self-disclosure
is not at issue in this matter.
7.
Respondent did not offer to perform a supplemental environmental program.
These aggravating and mitigating factors provide guidance to the Board in determining
the appropriate amount of a civil penalty in an environmental enforcement case.
Accordingly,
the Complainant brings these factors to the Board's attention.
'Illinois EPA inspected the Site on November 5, 2003.
See ΒΆ1
iO, Count I of Complaint.
9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board grant its Motion to Deem Facts Admitted and for
Summary Judgment against Respondent, JOEL HILLMAN, individually, award the relief
requested herein, and take such other action as the Board believes to be appropriate and
j ust.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General of the State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
BY:
CS~=z
r-A
STEREN J.SL
STERX
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
20th
Floor
Chicago, Illinois 60601
312-814-2087
10
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
CEtRTFI]CATE OF SERVICE
I,
STEPHEN J. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this
23rd
day of November, 2005, the foregoing Motion to Deem Facts
Admitted and for Summary Judgment and Notice of Filing upon the persons listed on said Notice
by depositing same in an envelope, by first class postage prepaid, with the United States Postal
Service at 1
00 West Randolph Street, Chicago, Illinois, at or before the hour of 5:00 p.m.
/STEPHEN/
.SYLV
STER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 23, 2005
