BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
General of the State of Illinois,
)
)
Complainant,
1
)
v.
1
PCB No. 06-27
1
JOEL HILLMAN, individually,
)
(Enforcement
-
Air)
)
Respondent.
1
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on the
3 1st day of August, 2006, I filed with the Clerk of
the Illinois Pollution Control Board a Stipulation and Proposal for Settlement and a Motion to
Request Relief From Hearing Requirement, copies of which are attached hereto and are hereby
served upon you.
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY:
3-
&'-
STEPHEN J. ~~LVESTER
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
2oth Floor
Chicago, Illinois 60601
3 12-8 14-2087
DATE: August
3 1,2006
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
SERVICE LIST
Mr. Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street,
1 1 th Floor
Chicago,
IL 60601
Mr. Joel
Hillman
3000 Island Blvd, Apt. 2003
Aventura, Florida 33 160
AND
Mr. Joel
Hillman
15 Franklin Avenue
Quiogue,
NY 1 1978
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by LISA MADIGAN, Attorney
)
General of the State of Illinois,
1
1
Complainant,
)
1
v.
)
PCB No. 06-27
)
JOEL HILLMAN, individually,
1
(Enforcement
-
Air)
1
Respondent.
1
MOTION TO REOUEST RELIEF FROM HEARING REQUIREMENT
NOW COMES the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, 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 August 24,2005, a Complaint was filed with the Illinois Pollution Control
Board ("Board") in this matter. On August 3 1,2006, a Stipulation and Proposal for Settlement
was filed with the Board.
2.
Section
31(c)(2) of the Illinois Environmental Protection Act ("Act"), 415 ILCS
513 1 (c)(2) (2004), effective August 1, 1996, 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.
3.
Section 3
1 (c)(2) of the Act, 41 5 513 1 (c)(2) (2004), provides as follows:
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
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 2 1 days
afier 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).
4.
No hearing is currently scheduled in the instant case.
5.
The Complainant requests the relief conferred by Section 3
l(c)(2) of the Act, 415
ILCS
513 1 (c)(2) (2004).
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 41 5 ILCS
513 1(c)(2) (2004).
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General of the
State of Illinois
BY:
5&
/-
#
STEP~~EN
J. S~LVESTE~I
Assistant Attorney General
Environmental Bureau North
188 West Randolph St.,
2oth Floor
Chicago, Illinois 60601
3 12-814-2087
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
1
1
Complainant,
)
1
PCB 06-27
v.
)
)
(Enforcement
-
Air)
JOEL
HILLMAN, individually,
1
)
Respondent.
1
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 JOEL
HILLMAN ("Hillman")y 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
hrther 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 Complaint except as otherwise provided herein. If the Board
approves and enters this Stipulation,
Hillman 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.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
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"), 41 5 ILCS
511 et seq.
(2004).
11.
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.
111.
STATEMENT OF FACTS
A.
Parties
1.
On August 24,2005, 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 3 1 of the Act, 41 5 ILCS 513 1
(2004), against
Hillman.
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section 4 of the Act, 41 5 ILCS 514 (2004).
3.
At all times relevant to the Complaint,
Hillman was and is a Florida resident.
B.
Site ~escri~tion
1.
At all times relevant to the Complaint,
Hillman was and is the owner andlor
operator of real property located at 133-135 Park Avenue, Barrington, Lake County, Illinois
("Site").
2.
The Site consists of two (2) commercial office buildings, 133 Park Ave and 135
Park Ave, respectively, and a parking lot.
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
3.
On or about October of 2003, or at a time better known to Hillman, Chicago
Commercial Services LLC, acting on behalf of
Hillman, began the renovation of the buildings at
the Site. Renovation of the buildings included the removal and disposal of asbestos-containing
floor tile and asbestos-containing thermal system insulation.
C.
Allegations of Non-Compliance
Complainant contends that Hillman has violated the following provisions of the Act,
Board Air Pollution Regulations, and National Emission
~tkdards for Hazardous Air Pollutants
("NESHAP") for asbestos, 40 C.F.R.
Part 61, Subpart M
:
Count I:
Air Pollution, in violation of Section
9(a) of the Act, 41 5 ILCS 5/9(a)
(2004), and
35
Ill. Adm. Code 201.141.
Count
11:
Failure to Follow Proper Notification Requirements, in violation of
Section
9.l(d) of the Act, 415 ILCS 5/9.l(d) (2004), and 40 C.F.R.
61.145(b).
Count 111:
Failure to Follow Proper Emission Procedures, in violation of Section
9.l(d) of the Act, 415 ILCS 5/9.l(d) (2004), and 40 CFR 61.145(a),
(c)(l), and (c)(6).
Count
IV:
Improper Disposal of Regulated Asbestos Containing Materials, in
violation of Section
9.l(d) of the Act, 415 ILCS 5/9.l(d) (2004), and 40
C.F.R.
61.150(b).
D.
Admission of Violations
Hillrnan admits to the violations alleged in the Complaint filed in this matter and
referenced within Section
1II.C herein.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and Hillman.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
V.
COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of Hillman 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)(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:
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
fi-om such
pollution source; and
5.
any subsequent compliance.
In response to these factors, the parties state the following:
1.
The impact to the public resulting from Hillman's noncompliance was that the
Illinois
EPA and the public were not privy to information that is important to the control of air
pollution in Illinois because no notification was received prior to the commencement of
renovation activities at the Site.
In addition, failure to adhere to the work practice standards of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
the NESHAP for asbestos in connection with regulated building renovation activities resulted in
the potential release of asbestos fibers, a known carcinogen, into the environment.
2.
The Site that is the subject of the Complaint has social and economic value.
3.
The Site that is the subject of the Complaint is suitable to the area in which it is
located.
4.
Complying with the applicable provisions of the Act, the Board's air pollution
control regulations and the NESHAP for asbestos is both technically practicable and
economically reasonable.
5.
Hillman ultimately achieved compliance by abating the asbestos prior to
recommencing renovation activities at the Site.
VII.
CONSIDERATION OF SECTION
42(h)
FACTORS
Section 42(h) of the Act, 41 5 ILCS 5/42(h)(2004), 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 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
ths 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;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
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 parties state as follows:
1.
Complainant contends that the gravity of the alleged violations is significant in
that Hillman's noncompliance with the Act, the Board Air Pollution Regulations, and the
NESHAP for asbestos, caused, threatened or allowed air pollution. Complainant contends that
the violations began on or about November 2003 and continued through July 17,2004.
2.
Complainant contends that Hillman was not diligent in that he initially failed to
provide for an adequate asbestos abatement prior to conducting renovation activities at the Site.
3.
The penalty obtained includes the economic benefit accrued as a result of
Hillman's non-compliance.
4.
Complainant has determined, based upon the specific facts of this matter that
a
penalty of Forty Thousand Dollars ($40,000.00) will serve to deter further violations and aid in
future voluntary compliance with the Act and Board regulations.
5.
To Complainant's knowledge, Hillman has no previously adjudicated violations of
the Act.
6.
Self disclosure is not at issue in this matter.
7.
Settlement of this matter does not include a supplemental environmental project.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
VIII. TERMS OF SETTLEMENT
A.
'
Penalty Payment
1.
Hillman shall pay a civil penalty in the sum of Forty Thousand Dollars
($40,000.00) within. thirty (30) days from the date the Board adopts and accepts this Stipulation
in the manner prescribed below. The penalty described in this Stipulation shall be paid by
certified check, money order or electronic
hds transfer payable to the Illinois EPA, designated
to the Illinois Environmental Protection Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
102 1 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
The name and number of the case shall appear on the check.
Hillman has provided his Social
Security Number ("SSN) to the Complainant so as to allow proper tracking of the payment
required herein. A copy of the certified check, money order or record of electronic funds transfer
and any transmittal letter shall be
seht to:
Stephen
J. Sylvester
Assistant Attorney General
Environmental Bureau
188
W. Randolph St., 2oth Floor
Chicago, Illinois 60601
Chris Pressnall
Assistant Counsel
Illinois Environmental Protection Agency
102 1 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) (2004), interest shall
accrue on any payment not paid within the time period prescribed above at the maximum rate
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
allowable under Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 511003 (2004).
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 addresses:
Joel
Hillman
3000 Island Blvd, Apt. 2003
Aventura, Florida 33 160
AND
Joel Hillrnan
15 Franklin Avenue
Quiogue, NY 1 1978
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 from Liability contained in Section
VIII.D, below, Hillman hereby agrees that this
Stipulation may be used against
Hillman in any subsequent enforcement action or permit
proceeding as proof of a past adjudication of violation of the Act and the Board Regulations
8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
promulgated thereunder for all violations alleged in the Complaint in this matter, for purposes of
Section
39(a) and (i) andfor 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(2004).
Further, Hillman 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
Hillman 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
1II.C ("Allegations of Non-
Compliance") of this Stipulation.
D.
Release from Liability
In consideration of Hillman's payment of the $40,000.00 penalty and any specified costs
and accrued interest, completion of all activities required hereunder, and commitment to Cease
and Desist as contained in Section
VII1.C and upon the Pollution Control Board's acceptance and
approval of the terms of this Stipulation and Proposal for Settlement, the Complainant releases,
waives and discharges
Hillman 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 August 24,2005. The Complainant reserves, and this Stipulation is without
prejudice to, all rights of the State of Illinois against
Hillman 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
9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
d.
liability or claims based on Hillman'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 Section
3.3
15 of the Act, 41 5 ILCS
513.3
15, or entity other than Hillman.
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
Hillman's facility 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.
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.
Hillman 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 does not approve and accept this Stipulation
and Proposal for Settlement, then neither party is bound by the terms herein.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
4.
It is the intent of the Complainant and Hillman 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.
G.
Execution of Document
This Stipulation and Proposal for Settlement shall become effective only when executed
by all parties and accepted and approved by the Board. This Stipulation and Proposal for
Settlement may be executed by the parties in one or more counterparts, all of which taken
together, shall constitute one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
WHEREFORE, Complainant and Hillman 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 Enforcement1
Asbestos Litigation Division
BY:
/
DATE: %/%q
ILLINOIS ENVIRONMENTAL PROTECTION
ROBERT~A. MESS~A
Chief Legal Counsel
DATE:
%/[g/bk
JOEL HILLMAN
BY:
JOEL
HILLMAN
DATE:
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
DATE:
WHEREFORE, Complainant and
Hillman 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:
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
BY:
ROBERT A. MESSINA
Chief Legal Counsel
JOEL
HILLMAN
JOEL LLMAN
-
DATE:
DATE:
4/'95:B6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006
7
CERTIFICATE OF SERVICE
I, STEPHEN J. SYLVESTER, an Assistant Attorney General in this case, do certify that I
caused to be served this
3 1st day of August, 2006, the foregoing Stipulation and Proposal for
Settlement, Motion to Request Relief From Hearing Requirement and Notice of Filing upon the
persons listed on said Notice by depositing same in an envelope, first class postage
piepaid, with
the United States Postal Service at 100 West Randolph Street, Chicago, Illinois, at or before the
hour of
5:00 p.m.
STEPH~N J. SYLVESTER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 31, 2006