BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
v.
CHAMPION ENVIRONMENTAL SERVICES
INC., a Wisconsin Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-199
(Enforcement)
NOTICE OF MOTION
TO: Jolm Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100
W. Randolph St., Suite I 1-500
Chicago,IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Ms. Javonna
1. Homan
Assistant Attorney General
Environmental Enforcement Bureau
Office
ofthe Illinois Attorney General
500 South Second Street
Springfield, IL 62706
PLEASE TAKE NOTICE that I have today filed with the Office
of the Clerk ofthe
Pollution Control Board Champion Environmental Services Inc.'s Motion To Finalize Settlement
Agreement and Memorandnm In Support
OfIts Motion To Finalize Settlement Agreement,
copies
of which are herewith served upon you.
CHAMPION ENVIRONMENTAL SERVICES, INC.
Dated: September 2, 2008
Jennifer
T. Nijman
NIJMAN FRANZETTI LLP
10 South LaSalle Street, Suite 3600
Chicago, IL 60603
(312) 251-5255
Electronic Filing - Received, Clerk's Office, September 2, 2008
CERTIFICATE OF SERVICE
1,
the undersigned, certify that on tIns 2nd day of September, 2008, 1 served electronically
the attached Champion Environmental Services Inc.'s Motion
To
Finalize Settlement Agreement
and Memorandum In Support
OfIts Motion To Finalize Settlement Agreement upon the
following person:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago,
lL
60601
and by U.S. Mail,
fIrst class postage prepaid, to the following person:
Javonna
1.
Homan
Assistant Attorney General
Environmental Enforcement Bureau
Office
of the Illinois Attomey General
500 South Second Street
SpringfIeld,
lL
62706
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
SpringfIeld,IL
62794-9274
(00004954.DOC)
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
Complainant,
v.
CHAMPION ENVIRONMENTAL SERVICES
INC., a Wisconsin Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-199
(Enforcement)
CHAMPION ENVIRONMENTAL SERVICES INC.
'S MOTION
TO FINALIZE SETTLEMENT AGREEMENT
Champion Environmental Services Inc. ("Champion"), by its undersigned counsel, and
pursuant to
35 Ill. Adm. Code 101.508, requests that the Illinois Pollution Control Board
("Board") enter an Order finding that the Stipulation and Proposal for Settlement prepared and
presented by Complainant on December 5, 2007 and executed by Champion is a final agreement
to be presented to the Board. In support
of its Motion, Champion submits the attached
Memorandum in Support and states as follows:
1.
Champion and Complainant entered into a valid contract to resolve this matter. All terms
were agreed by both parties, put into writing by Complainant, and presented to Champion
as [mal for presentation to the Board. The parties reached a final agreement to present to
the Board.
2.
Almost a year after reaching agreement on all terms, Complainant now refuses to execute
the agreement and demands changes to substantive terms that had been specifically
Electronic Filing - Received, Clerk's Office, September 2, 2008
negotiated. Neither law nor policy allows Complainant to avoid its contractual obligation
to present the agreed settlement to the Board.
3.
On May 23, 2005, Complainant filed a complaint alleging violations
of the National
Emissions Standards for Asbestos and certain
air pollution violations relating to a transite
removal action perfonned by Chanlpion in February of2005. Champion disputed the
allegations
of the complaint, but entered into settlement discussions with Complainant to
avoid the expense
of a full hearing.
4.
After a series of written exchanges of a settlement agreement, in December 2007
Complainant presented Champion with a
fInal Stipulation and Proposal for Settlement
('Stipulation") and requested that Champion execute it "as soon as possible." At that
time, the parties had agreed to all tenns and had manifested their intent to fInalize a
contract. Counsel for Chanlpion immediately sent the Stipulation to her client for
execution, as Asst. A.G. Homan had requested. Champion executed the Stipulation and
delivered it to Asst.
A.
G. Homan.
5.
On May 20, 2008, without explanation, Complainant refused to execute the fInal
Stipulation and instead sent to Champion a new version of the Stipulation that removed
all
of the key settlement terms to which the parties had already agreed.
6.
Contract law precludes Complainant from simply reneging on an agreement it had fully
negotiated and fInalized. The parties had a valid contract between them which was ready
to present to the Board.
To allow such backtracldng is directly contrary to applicable law
and to the policy to encourage settlements
of disputes. The parties spent almost two
years worldng out the details
of the Stipulation, and Complainant now seeks to begin
2
Electronic Filing - Received, Clerk's Office, September 2, 2008
those discussions anew, resulting in excessive and unnecessary delay and expenditure of
taxpayer funds.
7.
The Restatement (Second) of the Law- Contracts, Section 27, entitled "Existence of
Contract Where Written Memorial is Contemplated" states:
Manifestations
of assent that arc in themselves sufficient to conclude a
contract will not be prevented from
so operating by the fact that the parties
also manifest
an intention to prepare and adopt a written memorial thereof;
but the circumstances may show that the agreements arc preliminary
negotiations.
Restatement (Second)
of Contracts, Section 27 (1981).
8.
In this case, tlle parties unquestionably came to final terms. The parties exchanged many
drafts, and in December 2007 Complainant ultimately drafted a Stipulation which
contained ALL the final terms. Complainant tllen requested tllat Champion sign the
Stipulation
as soon as possible. None of the terms were incomplete and Complainant
clearly intended tlle terms
to be final when it requested tllat Champion sign the
Stipulation.
9.
Just as tlle Restatement of Contracts contemplated, the parties created a contract, the
terms
of which included an obligation to execute a final writing and present it to the
Board. The parties had agreed
to the terms of a Stipulation to present to the Board.
10.
To allow IEPA to renegotiate [mal terms of a settlement at any time is directly contrary to
the policy
to encourage settlement. Public policy in Illinois favors settlements and
dictates that, absent fraud or duress, settlements should be [mal.
Johnson
v.
Hermanson.
221 IlI.App.3d 582.582 N.E.2d 265 (5 Dist. 1991).
3
Electronic Filing - Received, Clerk's Office, September 2, 2008
WHEREFORE, Champion Environmental Services Inc. requests that the Illinois
Pollution Control Board ("Board") enter an Order [mding that the Stipulation and Proposal for
Settlement prepared and presented by Complainant on December 5, 2007 and executed by
Champion is a final agreement to be presented to the Board.
CHAMPION ENVIRONMENTAL SERVICES, INC.
Dated: September 2, 2008
Jennifer
T. Nijman
NIJMAN FRANZETTI LLP
10 South LaSalle Street, Suite 3600
Chicago, IL 60603
(312) 251-5255
4
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CHAMPION ENVIRONMENTAL SERVICES
INC., a Wisconsin Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-199
(Enforcement)
CHAMPION ENVIRONMENTAL SERVICES INC.'S MEMORANDUM
IN SUPPORT OF
ITS MOTION TO FINALIZE SETTLEMENT AGREEMENT
Champion Environmental Services Inc. ("Champion"), by its undersigned counsel, and
pursuant to 35
Ill.
Adm. Code 101.508, requests that the Illinois Pollution Control Board
("Board") enter an Order finding that the Stipulation and Proposal for Settlement prepared and
presented by Complainant on December
5, 2007 and executed by Champion is a [mal agreement
to be presented to the Board. In support
of its Motion, Champion submits this Memorandum
in
Support.
Champion and Complainant entered into a valid contract to resolve
tIns matter. All terms
were agreed by
bOtIl parties, put into writing by Complainant, and presented to Champion as
final for presentation to tIle Board. The parties reached a final agreement to present to the Board.
Almost a year after reaclnng agreement on all terms, Complainant now refuses to execute
tIle
agreement and demands changes to substantive terms tImt had been specifically negotiated.
NeitIler law nor policy allows Complainant to avoid its contractual obligation to present the
agreed settlement to the Board.
Electronic Filing - Received, Clerk's Office, September 2, 2008
1.
BACKGROUND AND CHRONOLOGY OF SETTLEMENT
On May 23, 2005, Complainant filed a complaint alleging violations
of the National
Emissions Standards for Asbestos and certain air pollution violations relating to a transite
removal action performed by Chanlpion in February of2005. Champion strongly disputed the
allegations
of the complaint, but entered into settlement discussions with Complainant to avoid
the expense
of a full hearing.
See
11/3/06 correspondence to Asst. Attorney General, attached as
Ex.
1, disputing allegations and discussing settlement terms. After discussions between the
parties, Champion agreed to increase the amount
ofthe settlement on the condition that the
"settlement would not be an admission and would not be used against [Complainant] in any way
in the future."
See
4/12/07 email to Asst. A.G. Javonna Homan, attached as Ex. 2.
On April 16, 2007, Complainant issued a demand for a final settlement amount, and
counsel for Champion confirmed that any settlement must include key terms (i.e., no admission
and
no use of the agreement as proof of a violation in the future).
See
4/16/07 correspondence
and responsive e mail, attached
as Ex. 3. Complainant prepared and submitted to Champion a
draft Stipulation and Proposal for Settlement ("Stipulation") on June 22, 2007, and Champion
submitted comments
on July 3, 2007, again insisting that specific terms for settlement must
include no admission, no future use
of the settlement as evidence of a violation in the future, and
a full release
of liability for all issues which could have been raised in the complaint.
See
6/22/07 correspondence and draft agreement with Champion revisions, attached as Ex. 4. After
further exchange, Champion issued a letter to Complainant dated September 21, 2007 again
insisting on certain terms as express conditions to resolving the dispute, including limiting the
future use
of the settlement as evidence of a violation in the future and obtaining a full release.
See
9/21/07 correspondence, attached as Ex. 5. Complainant responded in December with a
2
Electronic Filing - Received, Clerk's Office, September 2, 2008
revised version of the Stipulation, which contained the terms repeatedly requested by Champion.
See
12/3/07 correspondence and agreement, attached as Ex. 6.
Following minor corrections, Complainant presented Champion with a revised
Stipulation (which contained all the agreed terms) and requested that Champion execute it "as
soon as possible."
See
12/05/07 email fromAsst.AG.JavonnaHoman.attachedasEx.7.At
that time, the parties had agreed to all tenns and had manifested their intent to finalize a contract.
Counsel for Champion immediately sent the Stipulation to her client for execution, as Asst.
AG.
Homan had requested. Chanlpion executed the Stipulation and delivered it to Asst. AG. Homan
on March 6,2008. A copy
ofthe executed Stipulation is attached as Ex. 8.
In December, 2007, Asst. A.G. Homan requested a minor change to the Stipulation to
remove references to the IEPA due to an intemal dispute, but later determined that the IEPA
would, in fact, be included in the Stipulation.
See
December 2007 e mails between counsels,
attached
as Ex 9. No other changes to the Stipulation were made and no substantive terms were
changed.
In
fact, Complainant represented that she was authorized to route the Stipulation that
included IEPA (as had been executed by Champion) for signature.
See
12/18/07 and 12/19/07 e
mails between counsels, attached
as Ex. 10. The parties reported to the Hearing Officer that
Settlement terms had been reached and the Hearing Officer's Order reflected the fact that the
requested change to the agreed temlS was "to
clarify
that the Agency is a party to the
proceeding."
See
3/10/08 Hearing Officer Order, attached as Ex. II.
In May, 2007, Asst A.G. Homan informed Champion'scounsel that IEPA would prefer a
newer version
of the stipulation- without ANY mention of revised terms other than adding
IEPA. On May 20, 2008, without explanation, Complainant sent to Champion a version
ofthe
Stipulation that removed all
of the key settlement temlS to which the parties had already agreed.
3
Electronic Filing - Received, Clerk's Office, September 2, 2008
See 5/20/08
correspondence and draft Stipulation;
5/22/08
email from Champion, attached as
Ex.
12.
1
Contract law precludes Complainant from simply reneging on an agreement it had fully
negotiated and finalized. The parties had a valid contract between them which was ready to
present to the Board. To allow such backtracking
is directly contrary to applicable law and to tile
policy to enconrage settlements
of disputes. The parties spent almost two years working out tile
details ofthe Stipulation, and Complainant now seeks to begin tilose discussions anew, resulting
in excessive and unnecessary delay and expenditnre
of taxpayer funds.
II.
ARGUMENT
The scenario is common. Parties in a case agree to settle, come to terms, and one party
refuses to sign tile settlement agreement. The law is clear
in this scenario - tile contract is
enforceable. Settlement agreements fall within
tile laws of contract.
City ofChicago Heights v.
Crotty.
287 IlLApp.3d 883. 679 N.E.2d 412 (1997);
Solar v. Weinberg.
653 N.E.2d 1365 (1995);
Sementa v. Tvlman. 230
Ill.App.3d 701. 595 N.E.2d 688 (1992). Under contract law, oral
settlements are enforceable iftllere is an offer, an acceptance, and a meeting
oftile minds
regarding tile terms.
Johnson v. Hermanson.
221 Ill.App.3d 582. 582 N.E.2d 265. 267 (199])
(citing
Sheffield Polv-Glaz. Inc. v. Humboldt Glass Co..
42 Ill.App.3d 865, 868-69. I Ill.Dec.
555.356 N.E.2d 837.
840
C1976l). An offer or acceptance must be so definite witll respect to its
material terms
tilat tile promises and perfoTInances of each party are reasonably certain.
Academv Chicago Publishers v. Cheever.
144 Ill.2d 24.578 N.E.2d 981. 983 (1991). A meeting
oftile minds between the parties will occnr where tllere has been "assent to tile same tlungs in
J Pursuant to 35 Ill. Adm. Code 101.505, the undersigned counsel hereby certifies that the attached exhibits are true
and correct copies
of correspondence and documents exchanged by the parties and verily believes the same to be
true.
4
Electronic Filing - Received, Clerk's Office, September 2, 2008
the same sense on all essential terms and conditions."
La Salle National Bankv. International
Ltd..
129 IlLApp.2d 381, 394. 263 N.E.2d 506. 513 (1970).
There is no doubt
in tlns case that a valid contract exists. As of December 2007, tllere
was a written document, prepared by Complainant, detailing all tlle terms and conditions
oftlle
contract and making the
pronIises and perfonnances of each party very clear. Champion
accepted tlle terms as written, and ultimately signed the Stipulation. The parties both assented to
the same things on all the essential terms and conditions. Because a valid contract exists,
whetller oral or written, the parties may not repudiate it.
As soon as tlle parties manifested their
intent to conclude the contract, the fact
tlmt the contract was not finally executed does NOT
prevent the contract from operating.
The Restatement (Second)
of the Law - Contracts contemplates tllis exact scenario.
Section 27, entitled "Existence
of Contract Where Written Memorial is Contemplated" states:
Manifestations of assent that are in themselves sufficient to conclude a
contract will not be prevented from so operating by the fact that the parties
also manifest an intention to prepare and adopt a written memorial thereof;
bnt the circumstances may show that the agreements are preliminary
negotiations.
Restatement (Second) of Contracts, Section 27 (1981). The Comments to the Restatement
provide: "Parties who plan to
malce a final written instrument as tlle expression oftheir contract
necessarily discuss the proposed terms
ofthe contract before they enter into it and often, before
the final writing
is made, agree upon all tlle terms wInch they plan to incorporate tllerein. TIns
tlley may
do orally or by exchange of several writings.
It
is possible thus to malce a contract the
terms
of which include an obligation to execute subsequently a final writing wInch shall contain
certain provisions.
Ifparties have definitely agreed that tlley will do so, and that the fmal writing
5
Electronic Filing - Received, Clerk's Office, September 2, 2008
shall contain these provisions and no others, they have then concluded the contract." See
Comment
a, Rest. 2d. Contracts, section 27.
In this case, the parties unquestionably came to final terms. The parties exchanged many
drafts and
in December 2007 Complainant ultimately drafted a Stipulation which contained ALL
the fmal terms. Complainant then requested that Champion sign the Stipulation as soon
as
possible. None ofthe terms were incomplete and Complainant clearly intended the terms to be
final when it requested that Champion sign the Stipulation. IEPA was a party to the Stipulation
when it was negotiated
and fmalized by Complainant, and presented to Champion for signature.
Despite some subsequent internal dispute between the Attorney General's office and IEPA over
whether IEPA would ultimately be a party to the Stipulation, the settlement terms were fully
agreed between Claimant and Champion. IEPA was a named party in the final Stipulation and
IEPA, through its counsel, had finalized all the terms
of settlement. Just as the Restatement of
Contracts contemplated, the parties created a contract, the terms of which included an obligation
to execute a final writing and present it to the Board. The parties had agreed to the terms
of a
Stipulation to present to the Board.
The fact that the parties
in tllls case are required by Board rule to present a written
Stipulation to tlle Board is not dispositive.
See
35
Ill.
Adm. Code 103.300(a), 103.302.
Settlement
of a case filed by the IEPA, tlrrough tlle Attorney General, is a two step process.
First, tlle parties to tlle case must come to agreement on settlement terms. Second, tlle parties
present tlle agreed terms to tlle Board in order to obtain relief
fTOm tlle requirement of a hearing.
TIllS is no different tllan settling a case before a court where tlle court accepts the settlement
agreement in order to dismiss the case. The key is the parties' intent. Did the parties to tlle
settlement reach a point where they intended the agreement to be final? In
tllls case, that point
6
Electronic Filing - Received, Clerk's Office, September 2, 2008
came in December 2007 when Claimant presented Champion with a fmal written agreement to
be executed. The parties intended the
ten11S to be final and did not intend to invite further
negotiations before execution. As noted by the Restatement Comments, it is possible to
malce a
contract the terms
of which include an obligation to execute subsequently a final writing. The
parties here made a contract which included an obligation to execute it and present it to the
Board.
There is no case
law directly on point Witll tlus situation in wluch all terms had been
agreed and expressed
in writing. In cited cases, the parties orally come to general settlement
terms, but
do not agree on tile details ofthe Wlitten document.
See Estate olGlassman, 257
Ill.AppJd 102, 628 N.E. 2d 666 (1993) (oral settlement upheld where general settlement terms
reached but details never finalized and new facts arose after oral agreement). Here, all the details
were final and in writing. IEPA is simply trying
to renegotiate terms that had already been
settled. In other cases, tllere is oral agreement on terms but a dispute over the fmal release. The
Court analyzes the question
of fact whether parties specified that their agreement hinged on the
execution
oftile written release.
See Lampe v. O'Toole,
292 Ill.App.3d 144, 685 N.E. 2d 423 (2
Dist. 1997) (oral agreement upheld where unsigned release did not alter the settlement and
merely embodies tile agreement tile parties had already reached). Here, tile parties had finalized
the written document containing tile release and all otller terms. The parties thus had an
obligation to execute the final Wliting and present it to tile Board.
2
To allow IEPA to renegotiate final terms of a settlement at any time is directly contrary to
tile policy to encourage settlement. Public policy in Illinois favors settlements and dictates tllat,
2 In fact, in tilis case the most recent Stipulation presented by Claimant specifically deletes the language "the parties
agree that,
ifthe Board does not approve and accept this Stipulation and Proposal for Settlement, then neither party
is bound by the terms herein."
See
Stipulation p. 12, attached as Ex. 12. !EPA's intent as reflected by this deletion
was to present the Stipulation
to the Board as required, but not that the parties could ignore its terms.
7
Electronic Filing - Received, Clerk's Office, September 2, 2008
absent fraud or duress, settlements should be final.
Johnson
v.
Hermanson.
221 Ill.App.3d 582.
582 N.E.2d 265
(5 Dist. 1991) (citing
Fitzgeraldv. Theisen,
101 Ill.AppJd 193, 196.427 N.E.2d
1044. 1046 (1981). Here, the Claimant seeks to push
tins case back two years, at great expense,
to renegotiate tenns
timt had clearly been finalized and were ready to present to tile Board.
Champion requests
timt the agreement between tile parties in December 2007 be deemed final for
presentation to the Board,
CHAMPION ENVIRONMENTAL SERVICES,
INC,
Dated: September 2, 2008
Jennifer
T, Nijman
NIJMAN FRANZETTI LLP
10 Soutll LaSalle Street, Suite 3600
Chicago, IL 60603
(312) 251-5255
8
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 1
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
43 RUE DU RHONE
1204 GENEVA, SWITZERLAND
8UCKLEAS8URY HOUSE
:3
QUEEN VICTORIA STREET
LONDON, EC4N BNH
333 SOUTH GRAND AVENUE
ANGELES, CALIFORNIA 90071-1543
WINSTON
&
STRAWN
LLP
35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601.9703
(312) 556-5600
FACSIMILE (312) 558-5700
www.winslon.com
200 PARK AVENUE
NEW YORK, NEW YORK 101l:i6-4193
25 AVENUE MARCEAU
75116 PARIS, FRANCE
101 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111.5894
1700 K STREET, N.W.
WASHINGTON, D.C. 20006-3817
JENNIFER T. NIJMAN
(312) 558-5771
jnljman@wln5ton.com
(DDlN]FlIlllilE~
!F<IiJW, §lE'lI'1I'JLlElMIlEHIr lP'1IJIP!.ll"iDl§lE§
!mm.;w
November 3,2006
Ms. J.1. Homan
Assistant Attorney General
Office
of the Attorney General
State
of lllinois
Environmental Bureau
500 South Second Street
Springfield, lL 62706
Re:
People v. Champioll
Dear Jay:
As we discussed, the following is a position paper regarding why the state should
not pursue civil claims against Champion Environmental Services, Inc. ("Champion") regarding
the March 2005 transite removal in Moline, Illinois. This information is confidential and is
provided to you for settlement purposes only.
In brief, the allegations in the State's complaint regarding violations
of the
National Emissions Standards for Asbestos ("NESHAP") are not supported by the evidence.
Specifically, the nature
of the product (transite), the failure of the inspector to take appropriate
samples and handle the samples properly, the lack
of any evidence in the videotapes provided,
and the
air monitoring conducted at and around the site during the removal, make it questionable
whether the NESHAP applies to the Moline job at all. U.S. EPA has made it clear that asbestos-
cement products like transite panels are in a unique category:
Whether asbestos-cement products are subject
to the asbestos
NESHAP should be determined by the owner or operator
on a
case-by-case basis based
on the demolition techniques to be used.
In general, if contractors carefidly remove asbestos-cement
materials using tools that
do not cause significant damage, the
materials are not considered RACM and can be disposed ofwith
other construction debris.
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON
&
STRAWN
LLP
Ms. J.L. Homan
November 3, 2006
Page 2
IC(C@TIFJ.IJIT;lEImIAJL
JF(QIJRi.
3lE'Irn,lElWJEH'TI'lP'1IJ1l1'JPiDl§lE§I[j)HILY
However, if demolition is accomplished through the use of cranes
(equipped with wrecking balls, clamshells or buckets), hydraulic
excavators,
or implosion/explosion techniques, asbestos-cement
products will be crumbled, pulverized or reduced to powder, and
are subject to the provisions
of the asbestos NESHAP. (emphasis
added)
u.s.
EPA, Demolition Practices Under the Asbestos NESHAP, at Section I,
htlp://www.epa.govlRegion4/air/asbestos/demolish.htm (last updated March 7, 2006).
Champion did not use wrecking balls, clamshells or implosion/explosion techniques. Unless
Champion employed methods that crumbled, pulverized or reduced the transite
to powder, the
NESHAP does not apply to these materials.
Background
Champion was established in
1992 by Dominic Gorniak. Mr. Gorniak has over
25 years of personal experience in the removal and handling of asbestos materials. Champion
has an excellent record during that time period with only one prior violation resulting
in a
consent decree.! Champion has a history
of paying attention to employees health and safety and
acts in good faith based
on its years of experience.
The owners
of the fonner Case Manufacturing facility located in Moline, illinois
contacted Champion and requested that they conduct the removal of, among other things,
Category II nonmable transite panels from the roof
of the facility. Champion had done a prior
job for the Case owners
in Wisconsin and had no complaints or violations. Champion subrnitted
a notification
of the abatement'anddemolition project in a timely manner and began the project
in March 2005.
As you know, this case has been politically motivated from day one. The initial
"complaint" you received from a citizen, which spurred IEP
A's investigation and allegations,
was actually submitted
by a local union representative.
In
fact, the same union representative
took all the videos you provided
to us in discovery. We are aware that the local state senator and
the area union were upset that their local union employees were not being used for the
job
(Champion uses its own union employees). The union has made it clear to Mr. Gorniak that
"this will all
go away" if Mr. Gorniak changes his employees.
In
addition, the fact that the press
was aware
of the llIinois Environmental Protection Agency ("IEPA") inspector visiting the site,
before the inspector himself was tasked with the inspection, reveals the true motivation
of the
case. We note this because we believe the allegations are unsupported and the basis for filing the
I
That violation was due to notification issues, not handling or removal. Champion had been sending its notices of
removal jobs by federal express when the statute required other forms of delivery. The notices were
in
fact provided
in
a timely manner to the agency, but a technical violatiou occurred
in
that the notices were not provided according
to the statute (they were provided by Federal Express). This is hardly the record of a company with repeat
violations.
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON & STRAWN LLP
Ms. J.L. Homan
November 3, 2006
Page 3
,DOJI'.TIFIIlIDlE.I<11fITAlL
JFI!J)IPJ.
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complaint had little to do with Champion's practices and everything to do with a union's attempt
to exert influence.
Champion'sRemoval
The evidence in the case establishes that Champion employees properly removed
and handled the transite panels. As I described in our meeting, the transite panels had a rubber
membrane, foam and fiberboard attached to them. Spray-on newspaper (insulation) was adhered
to the underside
of the panels. Further, the panels were held down by wooden strips which
required significant effort to remove. Finally, the slope
of the roof created access issues.
Champion employees handled the panels in accordance with all requirements.
They peeled of the rubber membrane and scraped the foam, then used hannners or spud-bars to
knock off the nails and wooden strips (hold downs). Fiberboard was removed from the roof and
at times thrown from the roof. The transite panels (which are simply too heavy
to be thrown)
were transported to the base of the roof, angled, and stacked there, or stacked onto a high
lift/forklift. The panels were disposed, along with all material removed from the roof, as
asbestos containing material at the Rock Island landfill. Witness testimony will establish the
thousands ofloads deposited as full sheets.
Champion's practice was
to wet the material daily, while accounting for worker
safety. Due
to the roof pitch, constant wetting would cause workers to fall. Champion had a
third-party consultant on site every day and conducted both personal and area air monitoring on a
daily basis. These documents have been produced to you. None
of the air monitoring revealed
impermissible levels
of asbestos fibers in the air.
The Evidence Supports Proper Removal Practices
The process used by Champion is, in fact, perfectly depicted in the video tapes
you produced.
2
The tapes clearly show employees removing transite panels from the roof and
stacking them; not dropping them
off the edge as IEPA alleges. The workers are videotaped
hammering; but the tape does not show what is being hammered. The testimony will provide
that workers were hammering the wooden hold down bars or nails. There
is no contrary
evidence. Material thrown from the roof was the lighter weight fiberboard--not transite. This
fact
is clear because the fiberboard actually "sails" a short way; due to its weight, transite could
never be "thrown" in that way.
Moreover, the reports issued by IEPA'sinspector support Champion's removal as
described. On November 3, 2005, the inspector reports transite panels being "stacked."
Although he sees something thrown, he cannot tell what and only assumes transite.
On
2 By discussing these videotapes Champion does not waive its arguments that the tapes lack foundation, there are
chain of custody issues, the quality of tapes are poor, and/or other arguments concerning IEPA's reliance on the
tapes.
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON & STRAWN
LLP
Ms. J.L. Homan
November
3,2006
Page 4
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September 28, 2005, the inspector reports what he assumes to be transite being pushed off the
roof. On both occasions, the inspector is
off site and cannot testify whether the material he saw
actually was transite.
In
fact, the inspector goes to the site to take samples of the debris on the
ground on September 28th, and all his samples are non-detect for asbestos. Moreover, the on-
site air monitoring shows
no impermissible levels of asbestos fibers. Surely, if Champion was
throwing the transite
as alleged, there would be traces in the air on at least some occasions.
There
is no doubt that pieces of the transite did break, either on the roof, due to
accidental dropping, or when stacked or placed in dumpsters. Such breakage, however, is neither
improper nor against NESHAP standards. Broken pieces are not a violation.
In
fact, U.S. EPA
has issued a policy determination on when asbestos-containing materials, which are broken
during the course
of demolition and renovation, become friable. U.S. EPA states:
Specifically, you inquired at what point does damaged non-friable
ACM, such as transite siding, become regulated. As you stated in
your memorandum, the word "broken" has been deleted from the
definition section because it could be mistakenly interpreted
as
substantially increasing the scope of the standard. Most nonfriable
material can be broken without releasing significant quantities
of
airborne fibers.
It
is only when the material is extensively
damaged that the potential for significant fiber release is greatly
increased.
Transite siding, which is a Category II nonfriable ACM, becomes
regulated ACM
if it has a high probability of becoming or has
become crumbled, pulverized or reduced to powder by the forces
expected to act
on the material in the course of the demolition and
renovation operations. There is a difference between merely
breaking transite panel, and crumbling, pulverizing or reducing it
to powder.
If
a Category II material, such as transite, is in good
condition
it can be broken without causing the material to become
regulated.
Transite panels are typically bolted or nailed to
buildings
on which they are attached. The extent of breakage
which would normally result from carefully moving a transite
panel from a building and lowering it
to the ground prior to
demolition could not result in crumbling, pulverizing or reducing
the panel to powder.
(emphasis added)
See Memorandum from John P. Rasnic, Director, Stationary Source Compliance Division to
James
J. Burke, Chief, Toxics and Pesticides Branch, Region
ill
(Jan. 8, 1992),
http://www.epa.gov/oecaadix/btml/CI08.hlm.
Only when pieces are crumbled, pulverized
or reduced to powder is the NESHAP
standard even triggered. Again, any such "pulverizing or reducing
to powder" would have
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON
&
STRAWN LLP
Ms. J.L. Homan
November 3, 2006
Page 5
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shown up in daily area monitoring, but did not. The photos taken by the inspector which purport
to show crushed debris do not establish the debris as ACM as none of the three test results
correspond with any crushed debris. As noted, sprayed on newspaper lined the panels and was
scattered throughout. The photos, like the September 28th non-detect samples, were simply a
different material.
TEPA's support for an alleged failure to wet consists
of the inspector's notes that
the material he saw was
dry when in the dumpsters. As noted above, dry, broken materials are
not regulated. Only Category II material that
is subject to sanding, grinding, cutting or abrading
during collection must
be wetted and wetting must occur during the operation that damages the
material. No such observations were made and it has not been established that wetting was
required.
In
any case, Section 8 of U.S. EPA's Asbestos NESHAP Adequately Wet
Guidance sets forth procedures for inspectors
to follow to determine whether material is
adequately wet. None
of these procedures were followed. The Guidance provides:
- Ifthe bag or other container is transparent: ...
--------------If the material appears dry or not penetrated with
liquid or a wetting agent, open the bag using the additional steps
described
in step 9 below a collect a bulk sample of each type of
material in the bag noting variations in size, patterns, color and
textures.
- If
the waste material is contained in an opaque bag or other
container,
or ifthe material is in a transparent bag which appears to
be inadequately wetted:
...
---------Exarnine the contents ofthe bag for evidence of moisture as
in 8 above, and
if the material appears dry or it is not fully
penetrated with water or a wetting agent, collect a bulk sample.
http://www.epa.gov/region04/air/asbestos/awet.htrn (last updated March 7, 2006).
You have confirmed that no samples to establish wetness were taken. Moreover,
employee safety precluded wetting panels on the roof when employees were at risk, and
testimony will establish that Champion wetted the material each day. Finally, the transite and
attached foam, by their very nature, are developed to repel water. Id. at Section 7 (citing
"asbestos-concrete products"
as materials that do not absorb water readily). Whether a piece had
been previously wet could only be determined by specific sampling. We will have expert
testimony to support this fact. Such sampling was not done here. The only "dry" samples that
were taken by the inspector cannot be verified because there
is no documentation that proper
sampling protocol was followed.
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON
&
STRAW~
LLP
Ms. J.L. Homan
November 3, 2006
Page 6
Allegations
ofthe Complaint
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As set forth above, the evidence does not support a finding of a violation of the
National Emissions Standard for Asbestos,
as !EPA alleges in Count I of its Complaint.
Champion's procedures did not "crumble, pulverize or reduce to powder" the transite panels.
There is no evidence transite was hammered or dropped
to the floor. The fact that pieces were
broken is not enough. Even
if broken pieces were run over, as alleged, Champion uses rubber-
tired vehicles, the
use of which does not establish a violation. U.S. EPA has stated in Section 1
of its publication on Demolition Practices Under the Asbestos NESHAP:
Rubber-tired Vehicles
If nonfriable ACM is intentionally run over by rubber-tired
vehicles
as a means of segregation, it does not automatically
become RACM but must be examined for damage.
If it has
become extensively damaged, i.e., it was saoded, ground, cut or
abraded during segregation, it becomes RACM aod is subject to
the NESHAP regulation.
http://www.epa.govlRegion4/air/asbestos/demolish.htrn (last updated March
7, 2006).
Although Champion did not intentionally run-over aoy materials, this Guidaoce is
helpful because even
if intentionally damaged, the traosite material must be examined for
"extensive" damage. When damage is minimal aod non-intentional,
as in this case, the mere fact
that pieces
oftransite may have been run-over is irrelevaot.
In
Count II, IEPA alleges "air pollution" based on Section 9(a) of the illinois
Environmental Protection Act [the "Act"]. Under
the Act,
"Air
pollution" is defined as:
[T]he presence in the atmosphere of one or more contaminaots in
sufficient quaotities aod
of such characteristics aod duration as to
be injurious to humao, plao, or animal life, to health, or to
property,
or to unreasonably interfere with the enjoyment of life or
property.
415 ILCS 5/3.115. There is no evidence to establish any presence of asbestos fibers in such
quaotities and duration to be injurious. The daily air monitoring results dispel aoy such
allegation. The fact that the inspector observed "dust" is meaningless
as nothing establishes the
dust
as ACM or as injurious.
Count
ill
of the Complaint is equally without basis. IEPA generally alleges that
Champion engaged
in "open dumping" which resulted in litter in violation of 415 ILCS 5/21 (a),
(e)
&
(p)(l) by disposing aod abandoning ACM and other refuse at the Moline site. However,
Champion did not dispose or abaodon aoy ACM or other refuse at the site,
but rather
consolidated demolition materials at the site
for the appropriate purpose of removing the
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON & STRAWN LLP
Ms. J.L. Homan
November 3, 2006
Page 7
'LiIJ)j'.'1JFIIlIl>iEI<j']fl!AJL
W([j)ffi
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If
consolidated materials to a sanitary landfile. The mere consolidation of materials by Champion
at
the demolition site does not itself constitute "open dumping." See County of Madison v.
Abert, 1992 WL 404137, at *3 (Ill. Pollution Control Bd. Dec. 17, 1992) ("[M]ere consolidation
ofrefuse does not constitute open dumping.").
Under the Environmental Protection Act, 415 ILCS
5/21,
"open dumping happens
not when refuse is consolidated at the point
of demolition, but when it is consolidated at a
disposal
site that does not fulfill sanitary landfill requirements." EPA v. Vander, 579 N.E.2d
1215, 1217 (ll!. App. 1991) (emphasis in original).
In
other words, "there must be more than
demolition" for an
open dumping violation to take place; there ultimately must also be
"disposal." Id. Actual disposal occurs "when [ ] waste is disposed
of in such a way that it enters
the environment, is emitted into the
air, or is discharged into water." Abert, 1992 WL 404137 at
*3 (citing Vander, 579 N.E.2d atl217-18 ("If a building is demolished and the resulting waste is
cleared away to another location before it is allowed to
be dissipated back into the environment
or emitted into the air, or discharged into the water, the demolition site cannot be regarded as the
'disposal site,' and the prohibition against open dumping will not be triggered.")).
Given that daily air monitoring results at the Moline site did not at any time reveal
any impermissible traces
of asbestos fibers in the air, it is clear that Champion did not "dispose"
of any ACM in such a way so as to constitute open dumping within the meaning of 415 ILCS
5/21(a)
&
(e). And, because Champion did not "dispose" of any ACM in such a way so as to
constitute open dumping generally, it thus certainly did not then engage
in any open dumping
"which resulted in litter"
in violation of 415 ILCS
5/21(P)(1).
Conclusion
For the reasons discussed above, IEPA's allegations in its Complaint should be
resolved for minimal value. We propose that we resolve this matter
by payment of$7,000.00, no
admission ofliability, and with "future use"
ofthis settlement not to exceed five (5) years.
We look forward to discussing this matter with you.
JTN:dlc
cc:
Dominic Gomiak
3 As noted
in
the inspector's report, by the time of his second inspection on May II, 2005, Champion bad removed
to an off-site landfill several piles of consolidated debris originally observed by the inspector dnring his May 5, 2005
inspection. See Asbestos Inspection Memorandum for Former Case I H Plant, 1100
3rd St East Moline, IL 61244
from Dennis Hancock to Dale
Halford 5 (May 5, 2005) (original in possession ofIEPA)..
Electronic Filing - Received, Clerk's Office, September 2, 2008
Curry. Deborah
From:
Posted At:
Conversation:
Posted To:
Subject:
Importance:
RightFax E-mail Gateway
Friday, November
03, 2006 4:49 PM
Your fax has been successfully sent to J.L. Homan at 12175247740.
Inbox
Your fax has been successfully sent
to J.L. Homan at 12175247740.
High
Your fax has been successfully sent to J.L. Homan at 12175247740.
From: Jennifer
T. Nijman
Account: 009175
Matter: 00001
Time:
11/3/20064:42:03
PM
Sent to 12175247740 with remote ID "2175247740"
Result:
(0/339;010)
Successful Send
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on channel 7
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 2
People v. Champion Environmental Services, Inc.
PCB
No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
Nijrnan, Jennifer
From:
Sent:
To:
Cc:
Subject:
Nijman, Jennifer
Thursday, April 12, 2007 2:26
PM
'Homan, Javonna'
Nijman, Jennifer
RE: Champion
Hi Jay, after my vacation and then my client's, we've finally been able to discuss how to
proceed with this matter. At this point, your client demanded $44,000 and we responded with
a
detailed paper describing our position and our offer of $7,000. I still do not have any
sense of your client's basis for the alleged violations, as your letter of 2/27 gave very
little to go on.
In any case, before we start spending alot of taxpayer money on a hearing,
let's try again. My client will be able to increase its offer, but on the condition that the
settlement would not be an admission and would not be used against him in any way in the
future. If that is of interest, please respond with a demand and we'll get the discussion
moving. thanks
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 3
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
Nijrnan, Jennifer
From:
Sent:
To:
SUbject:
Nijman, Jennifer
Monday, April 16, 2007 10:58 AM
'Homan, Javonna'
RE: Champion
Jay, I received your letter. Will the state agree with our settlement terms regarding no
admissions and no use for future matters? If so, we can work with this number. thanks
-----Original Message-----
From: Homan, Javonna [mailto:JHoman@atg.state.il.us]
Sent: Monday, April 16, 2007 10:32 AM
To: Nijman, Jennifer
SUbject: RE: Champion
Ma'am - I've done a short letter & will fax it shortly with our bottom line penalty for your
review, per
our discussions. Hope you had a nice trip. Will initiate the status call at
1:30. -J
J.Homan, MG
EnvirDnmental 8ureau
-----Original Message-----
FrDm: Nijman, Jennifer [mailtD:JNijman@winstDn.cDm]
Serit: Thursday, April 12;
20e7
2:26 PM
TD: Homan, Javonna
Cc: Nijman, Jennifer
Subject: RE: Champion
Hi Jay, after my vacation and then my client's, we've finally been able
to discuss hDw tD prDceed with this matter. At this point, your client
demanded $44,000 and we responded with a detailed paper describing our
pDsition and Dur offer of $7,000. I still do not have any sense Df your
client's basis for the alleged violatiDns, as YDur letter Df 2/27 gave
very
little tD go Dn.
In any case, before we start spending alot of
taxpayer mDney on a hearing, let's try again. My client will be able to
increase its Dffer, but Dn the cDndition that the settlement would not
be an admission and wDuld not be used against him in any way in the
future. If that is Df interest, please respond with a demand and we'll
get the discussion mDving. thanks
The contents of this message may be privileged and confidential.
TherefDre, if this message has been received in error, please delete it
without reading it. Your receipt of this message is not intended to
waive any applicable privilege. Please do nDt disseminate this message
without the permissiDn of the author.
************************************************************************
******
Any tax advice cDntained in this email was not intended to be used, and
cannDt
be used, by you (Dr any other taxpayer) to avoid penalties under
the Internal Revenue Code of 1986, as amended.
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATTORNEY GENERAL
April 16, 2007
Ms. Jennifer Nijman
Winston and Strawn
35 W. Wacker Drive
Chicago, IL 60601
Re:
People v. Champion
Dear Ms. Nijman:
In
response to your April 12,2007, email, my authorization is for a bottom line offer of
thirty four thousand dollars ($34,000). Ifyour client is unwilling to accept that amount, we
should proceed to hearing.
If
you have any questions, I may be reached at (217)782-9031. Thank you.
L--....•
J. . Homan
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, llIinois 62706
217/782-9031
cc:
file
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 4
People v. Champion Environmental Services, Inc.
PCB
No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
Lisa Madigan
ATIOHNEY GENERAL
Ms. Jennifer Nijman
Winston and Strawn
35 W. Wacker Drive
Chicago,
II.
60601
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
lli.
June 22, 2007
Re:
People v. Champion
Dear Ms. Nijman:
Enclosed please find the draft Stipulation and Proposal for Settlement for your review.
Please
let me know if there are any proposed changes so that I may discuss them with my
management.
If
you have any questions, 1may be reached at (217)782-9031. Thank you.
incerely,
I
Vi
..- . L.R man
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
cc:
-c.
PressnallJD. Hancock, illinois EPA
fIle
500 South Second Street. Soringfield.lIIinois 62706 • (217) 782-1090 • TTY: (217) 785-2771 • Fax: (217) 782-7046
Electronic Filing - Received, Clerk's Office, September 2, 2008
Curry. Deborah
From:
Sent:
To:
SUbject:
Attachments:
nljrnan
,mment5.pdf (161 K
Curry, Deborah on behalf of Nijman, Jennifer
Tuesday, July 03,2007 12:33
PM
'jhoman@atg.state.il.us'
People v. Champion Environmental,
PCB 05-199
nijman comments.pdf
Attached are our co=ents, subject to client review. Thank you.
Jennifer T Nijman
Winston
&
Strawn
LLP
35 West Wacker Drive
Chicago Illinois 60601
312.558.5771 - Direct Dial
312.558.5700 - Facsimile
The contents ofthis message are privileged and confidential.
If
this message is received in
error, please delete it without reading. This message should not be forwarded or distributed
without the permission ofthe author.
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
vs.
CHAMPION ENVIRONMENTAL
SERVICES, INC., an Wisconsin
corporation,
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DRAFT
IN "FIlE
CIRG~I"F CO~R"F
R8SI< ISLAIlB
rOR "FIlE
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r8l:JRTEENTH
I' I
1~I016
JUDICIAL DISTRICT"-;
/
1
.
PEOPLE OF THE STATE OF
}
ILLINOIS, ex. reI. LISA MADIGAN,
}
Attorney General of the State of Illinois, }
}
}
}
}
~alillJ/
.
~
05.199
}
}
}
}
}
}
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
CHAMPION ENVIRONMENTAL SERVICES,
INC., ("Respondenf'), have agreed to lhe making of lhls
Stipulation and Proposal for Settlement ("Stipulation")
and submit illo the illinois Pollution Control Board
rSoard") for approval. "'FPtc pdrneS agice LI 1St U:9 etaten 18At sf facts eo: :tui: led Ileieh i iepicsci Its
-rr Fair summary or tile evidetlCe 81id restiiiiOiiy Wlilcli oUbold be iiiLiOdUEeU
by
the paFties if a
""I
ie~u11'g
Wele heid. Inenparues furtffefStlpuiam"mat trns SlaLe. i lei it ef Mlki-ii wade and agreed
I
'peR for tlwFf'es88 af
seLlIe:,
Ie:
it
Sin)
~11
iQ
'•• 1.1-(& idi
2
is 1Ali_lit ape:
l) AgC entered
jntg
this
~ti~bll.tiQn
nor any sf the Facts SUpUlaLed Hemin.
sha" h
g
iRtrisw888 iRis 8'1iiiR8S i"
e,,) etl.e!1
i
f31 cceedli 19 i ega) dh 19 1I Ie
s18i~B
8BseP4:s8
if)
the eOiilplali it except as aLI lei WISe piooidcd
-ACi~
If the Board approves and enters this StipUlation, Respondent agrees to be bound by
"i"\-~
.
the Stipulation and Board Order and
.
not to contest-Uleif
. .
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
-1-
Electronic Filing - Received, Clerk's Office, September 2, 2008
hereto pursuant to the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1 et seq. (2004).
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.
III. STATEMENT OF FACTS
A.
Parties
1. On May 23, 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 31 of the Act, 415 ILCS 5/31(2004), 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 (2004).
3. At all times relevant to the Complaint, Respondent was and is a Wisconsin
corporation that has filed a certificate
of authority to transact business
,
in Illinois in good
standing. The registered agent for Champion is Barbara
J.
Gorniak, 38 West End Drive,
Gilberts, Kane County, Illinois 60136
..
B. Site Description
1. CNH America LLC of East Moline is the owner of the former Case manUfacturing
facility located at 1100 Third Street in East Moline, Rock Island County, Illinois. The size
of the
facility is approXimately two million five hundred thousand (2,500,000) square feet. CNH
America LLC contracted Champion to remove approximately fifteen thousand linear feet
of
regUlated asbestos containing material ("RACM"), ten thousanp (10,000) square feet of
Category I non-friable asbestos containing material ("ACM"), and two million ten thousand
-2-
Electronic Filing - Received, Clerk's Office, September 2, 2008
__
•.'•• _f
~
•
(2,010,000) square feet of Category II non-friable ACM, prior to the demolition of the facility.
2. Champion submitted a notification of the asbestos abatement and demolition project
to the Illinois EPA on February 14, 2005.
The project commenced on or after February 24,
2005. Champion sUbsequently submitted a revised notification
of the asbestos abatement and
demolition project to the Illinois EPA on March 23, 2005.
C. Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
B. J!n:hiilsSlol
Count I:
Count II:
f
ViSIBtiS;J'
Violation of the National Emissions
Standards
for Asbestos, in violation of
Section 9.1 (d) of the Act, 415 ILCS
9.1 (d)(2004) and 40 CFR
§61.145(c)(1),(6) and 40 CFR
§61.150(b)(1).
Air Pollution Violations, in violation of,
4151LCS 9(a),
9.1 (d)(2004) and 40
CFR §61.150(a), and
3511I. Adm. Code
201.141.
The Respondent represents that it has entered into this Stipulation
for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
lJl';\
~
k
litigation. By entering into this Stipulation and complying with its terms, the
Respondent~s"'
~
not affirmatively admit the allegations of violation within the Complaint and referenced within
Section III.C herein, and this Stipulation shall not be interpreted as including such admission.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and 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"
-3-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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.
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
III. Adm. Code, Subtitles A through H.
VI. IMPACT
ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33( c) of the Act, 4151LCS 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 from such
pollution source; and
5.
any SUbsequent compliance.
In response
t~
factors, the part" s
~l
the
fOIlO~
1.(r:man he Ith and the
environment~reatened
by any emission of asbestos.
2. There is social
and economic benefit to the Respondent's operations.
3. The facility was suitable for the area in which it was located.
4.
The parties agree that compliance with the requirements of the Act, Board
regulations, and the asbestos NESHAP is both technically practicable and economically
reasonable.
-4-
Electronic Filing - Received, Clerk's Office, September 2, 2008
VII.
CONSIDERATION OF SECTION
421h)
FACTORS
.
_...;"-'~-,
.
....,,.,...
_, •...
_
.......
.
~_.
5. Respondent has subsequently complied with the Act and the Board Regulations.
Section 42(h) of the Act, 4151LCS 5/42(h)(2004), provides as follows:
~'
rc
In determining the appropriate civil penalty to be imposed unde .. ; this Section,
the Board
is authorized to consider any matters of record in mitl
on 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 tei 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 altematlve 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 I
ofthis 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
~~~~es
st
as
foilow~
1.
~
Resprn'dent failed to properly con ct asbestos removal operations at the
site~~
Tile
Hiolatioos
b8!lIl~n
or around May 5,2005. The Illinois EPA reinspected the facility on
May 11, 2005, and determined that the removal and
dis~osal
activities at the site were in
'.
compliance with applicable laws and regulations at that time.
2. Respondent represents that it was diligent in
al;lBFR~liR9
Ie BBFRe bask iRle-
-5-
Electronic Filing - Received, Clerk's Office, September 2, 2008
?",(f\
-\0
~~~
~~
compliance with the
A~lo;d
regulations and applicable federal regulations,J_ the Illinois
1\ltlh'tAtt
D
1\
r
AlIA
ERA
Ratified,.
of
its/noncomp~.'
3. Complainant alleges that Respondent derived a nominal economic benefit by not
using the proper and approved method for asbestos removal; however, the civil penalty amount
exceeds any economic benefit that may have been enjoyed by the Respondent.
4. Complainant has detenmined, based upon the specific facts
of this matter, that a
penalty
of thirty four thousand dollars ($34,000.0.0) will serve to deter further violations and aid
in future voluntary compliance with the Act and Board.regulations.
5. To Complainant's knowledge, Respondent has one, previously adjudicated violation of
the Act, PCB 1997-13G-
w\Nc..h
r~\o..+o.J.
0J.t--
~
\Mt-.CS1Dpe:-
NlW\~
i><f
a;.~~lA.!LJ.l'N)lJaU
O-M-&
~ r~~
1C4
'9l.~~
'"'\
6. Self-disclosure is not at issue in this matter.
I
$\A~"~_JC'\I\.
7. The settlement of this matter does not include a supplemental environmental project.
VIII. TERMS OF SETILEMENT
A.
Penalty Payment
ent stipulates that s
attorney has been directed to
ma
enalty payment on behalf
of Respondent, wi in thirty
in this matter in a form acceptable to that attorney. Furth
1. The Respondent shall pay a civil penalty in the sum of thirty four thousand dollars
($34,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
illllil'd'!l'tee the Board adopts and accepts this Stipulation, in a manne rescribed
The penalty described
in this Stipulation shall be paid by certified chec money order or
electronic funds transfer payable to the Illinois EPA, designated to the Illinois nvironmental
Protection Trust Fund and submitted
to:
Illinois Environmental Protection Agency
Fiscal Services Section
-6-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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), shall appear on the check. A copy
of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be sent to:
J. Homan
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
. Christopher
PressnaU
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) (2004), 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 (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)
ar~
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.
~~~
.tA
JlA
.
(e.clJV\';'a.1~-'
3. For purposes of payment and collection, Respondent may be(fii88R1 at the following
'.
address:
Jennifer Nijman
-7-
"'..
'
,....., ...,", " "
" .•.. ,...
Electronic Filing - Received, Clerk's Office, September 2, 2008
Winston & Strawn
35 W. Wacker Drive
Chicago, IL 60601-9703
4. In the event of default of this Section VilLA, the Complainant shall be entitled to all
available relieflinciUding, but not limited to, reasonable
c~sts
of collection and reasonable
attorney's fees\-.
~61 po-L>fi"~ ~ ~
0vJ
~
.
B.
Future Use
Notwithstanding any other language in this Stipulation and Proposal for Settlement to
the contrary and in consideration of the mutual promises and conditions
contai~
this
~
Stipulation including the Release from Liabili
t
contained in Section XIV., below,
_~~9Qt~
~y
agree(;hat this Stipulation
may~~~Sed
against Respondent in any subsequent
enforcement action or permit proceeding iRitiated
Quit/til
i lOll (18)
'Yew
3 f4'SFFI
~Ri
gate af th!::
Qadi d order eeeepth 19 1I.is SlipolaLiOli 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)
andlor
42(h) of the Act, 415 ILCS
5/3g(a)
and (I)
and/or 5/42(h)(2004). FldrthsF; RQip18ReleAt egises to wahle
aR~' Fi~Rt6
is
seRtes!,
iR
8Ft) sL1CTl
.... sttbseqUent enfOrcemeht acnon of permit proceedli 19, 81 iy allegallufls tlidt tllcse Blleged
vieiatisA8 here e!Bjhldic?ted
r
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 IILC
. ("Allegations of Non-Compliance") of this Stipulation.
D.
Release
from Liability
In consideration of the Respondent's payment of the $34,000.00 penalty and
commitment to Cease and Desist as contained in Section VIILC and upon the Pollution Control
-8-
Electronic Filing - Received, Clerk's Office, September 2, 2008
_.•
_._:"_'.'-I~_.H->£
.-,,0-_ •• __.'.__ "-
_
u1Wc1
{f)u'0..
'na~ ~
ra
I
.bdl ..Vv--
o(
CtJw..
b-ud.
Board's acceptance and apQroval of the terms of this lipulation and roposal for Settlement,
the Complainant releases, waives and discharges the Respondent fro any further liability
or
penalties for violations of the Act and Board Regulations that were the subject matter of the
Complaint
~
.. The release set forth above does not extend to any atters other than those
expressly specified
in. Complainant's Complaint filed on May 23, 200 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
andlor
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 Section 3.315
of the Act, 415 ILCS
5/3.315,
or entity other than the Respondent.
E. 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.
-9-
Electronic Filing - Received, Clerk's Office, September 2, 2008
3. The parties agree that, if the Board does not approve and accept this Stipulation and
remain in full force
and-effe'~t
Proposal for Settlement, then neither party is bound by the terms herein.
4. It is the inte
etlll~'~~mPlainant
and
nde~t
that the
ProViSi~f,thrs'
Proposal for Settlem
nd any Board Order
acc~plir!~
approving sucb.
uld any provision
/e6'b
y
--
a court
.......
of comlJ
Jurisdiction
/
to
with state
or federallaw,.artll'therefore unenforce e, the remaining clauses
.~~
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
DATE:
_
MATTHEW
J.
DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DATE:
_
ROBERT
A MESSINA
Chief Legal Counsel
-10-
Electronic Filing - Received, Clerk's Office, September 2, 2008
CHAMPION ENVIRONMENTAL SERVICES,
DATE:
_
INC.
Name:
Title:
--------
BY:
--;c;----------
-11-
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBITS
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
43 RUE DU RHONE
1204 GENEVA, SWITZERLAND
BUCKLERSBURY HOUSE
3 QUEEN VICTORIA STREEr
LONDON, EC4N BNH
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071-1543
JENNIFER T. NIJMAN
(312) 56B-5771
jnljmanCwinston.com
WINSTON
&
STRAWN
LLP
35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601-9703
(312) 55B-5600
FACSIMILE (312) 55B-5700
www.winston.com
September 21, 2007
200 PARK AVENUE
NEW YORK, NEW YORK 10166-4193
25 AVENUE MARCEAU
75116 PARIS, FRANCE
101 CALIFORNIA STREET
SAN FAANCISCO, CALIFORNIA 94"'-5894
1700 K STREET, N.W.
WASHINGTON, D.C. 20006-3817
BY EMAIL AND U.S. MAIL
Ms. Javonna
L
Homan
Assistant Attorney General
Environmental Enforcement Bureau
Office
ofthe illinois Attorney General
500 South Second Street
Springfield,
II..
62706
Re:
People v. Cllampioll Ellviro1l11lelltal,
No. 05-199
Before the Illinois Pollution Control Board
Dear Javonna:
I received the revised Stipulation and Proposal for Settlement
and have several
comments. For ease
of discussion, I created a redlined version with any remaining disputes
noted in bold. The redlined version is attached.
On page I, I requested deletion of the statements regarding agreement to the facts
as stated. This is
not a "standard" paragraph
(i.e.,
not in every settlement before the Board) and
is not accurate. The only "facts" in this Stipulation are in Section IILA and II1.B, so I have
limited any references accordingly.
We do.not agree that the limited facts as presented reflect
the evidence
or testimony the defense would introduce at a hearing. The facts in Section II1.A.
and
II1.B. are very brief and incomplete. I had deleted the reference to use of the facts
in
other
proceedings because the facts
as stated are very basic
(i.e.,
description of parties; description of
site). Although I do not see why such basic facts would not be able to be used
in
other
proceedings, I left the remaining language as you requested.
In
Section VIII.B, Future Use, you deleted the language which limited the future
use
of the settlement against my client. As you will recall, my client's agreement to this entire
settlement was conditioned
on this limitation in use. The client agreed to pay a higher penalty in
return. Please see my email of April 12, 2007 where I made this point in writing. Champion
cannot
be in the position of a settlement being used against it when neither the facts nor the
allegations are established or agreed. This flies
in the face of our agreement and the purpose of
Electronic Filing - Received, Clerk's Office, September 2, 2008
WINSTON
&
STRAWN LLP
Ms. JovannaHoman
September
21,2007
Page 2
settlement.
We would be happy to raise this issue with the Hearing officer should your client
refuse to agree to the revision.
Similarly,
in
Section VIII.D, Release from Liability, you did not accept my
reVISIOns. The settlement must address all issues relating to the removal project at the former
Case facility. Surely you understand that
we cannot settle this Complaint only to face the
potential
of a new complaint the next day for the same site. We have discussed the "politics"
behind the filing
of the complaint and our understanding of the union issues involved. Work at
the site is long over and the client needs final resolution.
All
issues regarding this site should be
addressed
by this settlement.
Finally, please justify your request
to retain Section VIII.E, paragraph 4, page 10,
regarding severability. We cannot agree to a scenario where, for instance, the provisions
ofthis
agreement regarding our non-admission
of the facts and allegations are not upheld, but we are
none-the-less ordered to pay the settlement amount. Each
ofthese paragraphs is dependent upon
the entire agreement being accepted.
I
look forward to hearing from you.
JTN:dlc
Enclosure
cc:
Dominic Gorniak
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS, ex. rei. LISA MADIGAN,
Attorney General ofthe State ofIllinois,
Complainant,
VB.
CHAMPION ENVIRONMENTAL
SERVICES, INC., an Wisconsin
corporation,
Respondent.
)
)
)
)
)
)
) No. 05-199
)
)
)
)
)
)
snpULAnON AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by USA MADIGAN, Attorney
General
ofthe State oflllinois, the lllinois Environmental Protection Agency (''lllinoisEPAU),
and CHAMPION ENVIRONMENTAL SERVICES, INC., (''Respondent''),have agreed to the
making
ofthis Stipulation and Proposal for Settlement ("Stipulation'')and submit it to the
lllinois Pollution Control Board (''Board'')for approval. The parties agree that the statement
of
facts contained in Section
W,A
and III,B Iherein f6jlfeseffis a fair s_ary efthe e'lidenee end
testimony
...rlHefl ",yeHld be intred!!seEi by the parties if a heariHg wefe helEl, The parties further
stipHlate that this statement
ef fasts 2is 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 stiplilateEl
3
in..
SectiOn W, A and ffi,B4 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, Respondent agrees to be bound
by the Stipulation and Board
Order and not to contest its validity in any subsequent proceeding to implement or enforce the
terms,
- 1-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 lLCS 5/1 et seq.
f52004).
II.AUTHORIZATION
The undersigned representatives for each party
certif'ythat 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.
ill.STATEMENT OF FACTS
A.
Parties
1.
On May 23,2005, a Complaint was filed on behalf of the People of the State
ofDlinois
by Lisa Madigan, Attorney General of the State ofDlinois, on her own motion and
upon the request
of the lliinois EPA, pursuant to Section 31 ofthe Act, 415lLCS 5/31(2004),
against the Respondent.
2.
The llIinois EPA is an administrative agency of the State ofllIinois, created
pursuant to Sectioi14
of the Act, 415lLCS 5/4 (2004).
3.
At
all
times relevant to the Complaint, Respondent was and is a Wisconsin
corporation that has filed a certificate
of authority to transact business in llIinois in good
standing. The registered agent for Champion is Barbara
J. Gorniak, 38 West End Drive, Gilberts,
Kane County, Dlinois 60136.
B.
Site Description
1.
CNH America LLC ofEast Moline is the owner ofthe former Case
manufacturing facility located at
1100
Third Street in East Moline, Rock Island County, Dlinois.
- 2-
Electronic Filing - Received, Clerk's Office, September 2, 2008
The size ofthe facility is approximately two million five hundred thousand (2,500,000) square
feet. CNH America LLC contracted Champion to remove approximately fifteen thousand linear
feet
ofregulated asbestos containing material ("RACM"), ten thousand (10,000) square
feet
of
Category I non-friable asbestos containing material ("ACM"), and two million ten thousand
(2,010,000) square feet
of Category IT non-friable ACM, prior to the demolition ofthe facility.
2.
Champion submitted a notification of the asbestos abatement and demolition
projectto the lllinois
EPA on February 14, 2005. The project commenced on or after February
24, 2005. Champion subsequently submitted a revised notification
ofthe asbestos abatement and
demolition project to the ll1inois EPA
on March 23, 2005.
c.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated the following provisions
ofthe
Act and Board regulations:
Count
I:
Count IT:
D.
Non-Admission
of Violations
Violation
of the National Emissions
Standards for Asbestos, in violation
of
Section 9.1(d) oithe Act, 415 ILCS
9.l(d)(2004) and 40 CFR §61.145(c)(I),(6)
and
40 CFR §61.150(b)(I).
Air
Pollution Violations, in violation of, 415
ILCS 9(a), 9.1(d)(2004) and 40
CFR
§61.150(a), and 35 lll. Adm. Code 201.141.
The Respondent represents that it has entered into this Stipulation for the purpose
of
settling and compromising disputed claims without having to incur the expense of contested
litigation.
By entering into this Stipulation and complying with its
terms,
the Respondent
contests and does not affirmatively admit the allegations
ofviolation within the Complaint and
Electronic Filing - Received, Clerk's Office, September 2, 2008
referenced within Section
m.c
herein, and this Stipulation shall not be interpreted as
includin~
(j
'\'
C, t,'''-'
l~
l,
Llf.\
rrf
-I
b2,'.ff
JiJ2./;",/{\},.\;r::.
(9:~_
(I)
such admission.
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IV.APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the Respondent,
and any officer, director, agent,
or employee ofthe 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
ofthis Stipulation.
V.COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation
in
no way affects the responsibilities ofthe 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) ofthe 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 ofthe emissions, discharges, or deposits involved
including,
but not limited to:
1. the character and degree ofinjury to, or interference
with the protection ofthe health, general welfare and
physical property
ofthe people;
2. the social and economic value
ofthe pollution source;
3. the suitability or unsuitability
ofthe 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
ofreducing or eliminating the emissions, discharges or
deposits resulting from such pollution source; and
5. any subsequent compliance.
- 4-
Electronic Filing - Received, Clerk's Office, September 2, 2008
In
response to these factors, the parties state the following:
1.
The Complainant alleges that human health and the enviromnent were
threatened
by any emission of asbestos.
2.
There
is social and economic benefit to the Respondent's operations.
3.
The facility was suitable for the area in which it was located.
4.
The parties agree that compliance with the requirements
ofthe Act, Board
regulations, and the 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) ofthe Act, 415 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 ofpenalty, 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 of
the respondent in attempting to comply with requirements
ofthis Act and regulations thereunder or to secure relief
therefrom
as provided by this Act;
3. any economic benefits accrued
by the respondent
because
ofdelay in compliance with requirements,
in
which
case the economic benefits shall be determined by the
lowest cost alternative for achieving compliance;
4. the amount
ofmonetary 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-
Electronic Filing - Received, Clerk's Office, September 2, 2008
5. the nwnber, proximity in time, and gravity ofpreviously
adjudicated violations
ofthis Act by the respondent;
6. whether the respondent voluntarily self-disclosed, in
accordance with subsection I ofthis 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 alleges that the Respondent failed to properly conduct asbestos
removal operations at the site beginning on or around May 5, 2005. The lllinois EPA reinspected
the facility on May 11, 2005, and detennined that the removal and disposal activities at the site
were in compliance with applicable laws and regulations at that time.
2.
Respondent represents that it was diligent in its compliance with the Act,
Board regulations and applicable federal regulations, prior to and subsequent to the lllinois
EPA'snotification ofits alleged noncompliance.
3.
Complainant alleges that Respondent derived a nominal economic benefit
by
not using the proper and approved method for asbestos removal; however, the civil penalty
amount exceeds any economic benefit that may have been enjoyed
by the Respondent.
4.
Complainant has detennined, based upon the specific facts ofthis matter, that
a penalty
of
thirty
four thousand dollars ($34,000.00)
will
serve to deter further violations and aid
in
future voluntary compliance with the Act and Board regulations.
- n-
Electronic Filing - Received, Clerk's Office, September 2, 2008
5.
To Complainant'sknowledge, Respondent has one previously adjudicated
violation
of the Act, PCB 1997-135, which related
.w...6
an alleged improper notification of
asbestos removal and was resolved by settlement and stipulation.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental
project.
VIII.TERMS
OF SETTLEMENT
A.
Penalty Payment
I.
The Respondent shall pay a civil penalty in the snm of
thirty
four thousand
dollars ($34,000.00) within
thirty
(30) days from the date the Board adopts and accepts this
Stipulation. The payment
of the civil penalty shall not be construed as an admission of any fact
or allegation but is paid for settlement purposes only. The penalty described in this Stipnlation
shall
be paid by certified check or money order payable to the Illinois EPA, designated to the
lllinois Environmental Protection Trust Fund and submitted to:
Illinois Environmental Protection Agency
7Fiscal Services Section
81021 North Grand Avenue East
9p.O. Box 19276
IOS
pringfield,
IL 62794-9276
The name and number
ofthe case and Respondent'sFederal Employer Identification Number
(FEIN), shall appear on
the check. A copy ofthe certified check or money order and any
transmittal letter shall
be sent to:
I. Homan
II
Assistant Attorney General
12Environmental Bureau
13
500 South Second Street
14S
pringfield,
lllinois 62702
Electronic Filing - Received, Clerk's Office, September 2, 2008
Christopher Pressnall
15Assistant Counsel
1611linois Environmental Protection Agency
17
1021 North Grand Avenue East
IBp.a.
Box 19276
19S
pringfield,
lllinois 62794-9276
2.
Pursuant to Section 42(g)
ofthe Act, 415 II.,CS
5/42(g)
(2004), interest shall
accrue
on any payment not paid within the time period prescribed above at the maximum rate
allowable under Section 1003(a) ofthe lllinois Income Tax Act, 35 II.,CS
5/1003
(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 lllinois EPA, designated to the lllinois Environmental Protection Trust
Fund and
delivered to the address and in the manner described above.
3.
For purposes ofpayment and collection, Respondent may be contacted
through counsel at the following address:
Jennifer
L.?!lNijman
21Winston
&
Stra~
2235 W,23J:YW24 Wacker Drive
25Chicago,
II., 60601-9703
4.
In the event ofdefault ofthis Section VIlLA, the Complainant shall be entitled
to all available relieffor payment of the civil penalty including, but not limited to, reasonable
costs ofcollection and reasonable attorney'sfees.
B.
Future Use
Notwithstanding
any other language in this Stipulation and Proposal for Settlement to the
contrary and
in consideration of the mutual promises and conditions contained in this Stipulation
Electronic Filing - Received, Clerk's Office, September 2, 2008
including the Release from Liability contained in Section XIV., below, the RespeBEient
agrees
26
parties aeree27 that this Stipulation may 1l.IIi
28
be used against Respondent
in
any
subsequent enforcement action
or permit proceeding ffiitiated within teB (10) years frem the date
af the Beard arEier asseptiBg this StiplllatiaB 29
as
proof of a past adjudication ofviolation 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) ofthe Act, 415 ILCS
5/39(a) and (i) and/or 5/42(h)(2004).
Fmther, ReSjlaBdeBt agrees te waPie myrigfits ta saBtest,
c.
Cease and Desist
ffi
EIBY sush
suBse~eBt
eBfursemeBt astiaB af permit praseeemg, ElBY alleglltiaBs that these
t., ()-- b-'
~
\\
allegeEi y-ielatiaBS were adjuEiieated
3o
•
\
e.,
~i
'1\'
0"
,
O'~~(}l'
't ..J \
The Respondent shall cease and desist from future violations ofthe Act and Board
Regulations that were the subject matter
ofthe Complaint as outlined
in
Section
m.c
("Allegations ofNon-Compliance") ofthis Stipulation.
D.
Release from Liability
In
consideration ofthe Respondent'spayment of the $34,000.00 penalty and commitment
to Cease and Desist as contained in Section VIII.C and upon the Pollution Control Board's
acceptance and approval
of the terms ofthis Stipulation and Proposal for Settlement, the
Complainant releases, waives and discharges the Respondent from any further liability
or
penalties for violations ofthe Act and Board Regulations that were the subject matter of the
Complaint. The release set forth above does not extend to any matters other than those expressly
specified
in
Complainant'sComplaint filed on May 23,
~31200S
Df which could have been
raised in the Complaint,32 The Complainant reserves, and this Stipulation is without prejudice
Electronic Filing - Received, Clerk's Office, September 2, 2008
to, all rights of the State of lllinois 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
ofthe alleged violations; and
d. liability
or claims based on the Respondent'sfailure to satisfy the requirements ofthis
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 orjudicial, civil or criminal, past or future, in law or
in
equity, which the State oflllinois or the lliinois EPA may have against any person, as defined
by Section 3.315 ofthe Act, 415 ILCS 5/3.315, or entity other than the Respondent.
E.
Enforcement of Board Order
1.
Upon the entry of the Board'sOrder approving and accepting this Stipulation
and Proposal for Settlement, that Order is a binding and enforceable order
ofthe lliinois
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 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.
"k
It
is the mteRt sf the CSHlfllaiaant aad RSSflsRdsRt that the j3F8visisRS sfthis
Stij'JulatisR aad PfSj3SSal fef Settlement aad aa)'BSaFd OFdBf ooe8j3tmg aad aj3j3f8','ffigsooh shaH
be se'lefable, aad shsuld anyj3F8YisisB be dseillfed by a esurt sfeSHlfletentjarisdietisB fs be
Electronic Filing - Received, Clerk's Office, September 2, 2008
iIle8HsistsBt with stats SF [aesra-! Jaw, aHe thsFsfsFS lIHsHfeFesabJs, ths FemaiaiHg eJausss shall
Fsmam
ill fttY
feFes aHe sffeet.33
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 ofllIinois
DATE:
_
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
--------------
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
DATE:
_
ROBERT A.
MESSINA
ChiefLegal Counsel
BY:
-----------
CHAMPION ENVIRONMENTAL
SERVICES, INC.
DATE:
_
BY:
--------------
Name:
_
Title:
_
Electronic Filing - Received, Clerk's Office, September 2, 2008
Document comparison by Workshare Professional on Friday, September 21,2007
10:18:15
AM
Document 1 10
PowerDocs:IICH1/1964143/2
CHI-#1964143-v2-
Description
Champion_Enviromental:_Stipulation_and_ProposaLfor
Settlement
Document 210
PowerDocs:IICH1/1964143/3
CHI-#1964143-v3-
Description
Champion_Enviromental:_Stipulation_and_ProposaLfor
Settlement
Renderin set
Standard
no color
•
Count
Insertions
25
Deletions
10
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35
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 6
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATrORNEY GENERAL
December 3,2007
Ms. Jennifer Nijman
Winston and Strawn
35 W.
Wacker Drive
Chicago, IL 6060 I
Re:
People
v. Champion
Dear Ms. Nijman:
Enclosed please find the most recent version
ofthe draft Stipulation and Proposal for
Settlement for your review. Most
of the changes suggested in your September 21, 2007, letter
and previous revised draft have been incorporated. Specifically:
(I) previous draft page 1, first paragraph, rework references to "facts" - done
(2) previous draft page 7, add
"to" to VlI, #5 - done
(3) previous draft page 8, changes to address - done
(4) previous draft pages 8-9, B - removed "Future Use" section
(5) previous draft page 9, addition
of "or which could have been raised in the
Complaint" - rephrased
(6) previous draft pages 10-11,
E. #4 - removed.
As you can see, nearly all
of your suggestions were incorporated - only one was rephrased.
Please review the enclosed document and inform me
of your position.
If you have any questions, I may be reached at (217)782-9031. Thank you.
man
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois62706
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY: (217)
785~2771
• Fax: (217)
782~.7046
,nn "'•••.• D ..
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C'••••
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Electronic Filing - Received, Clerk's Office, September 2, 2008
cc:
file
217/782-9031
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPION ENVIRONMENTAL
SERVICES, INC., an Wisconsin
corporation,
No. 05-199
Respondent.
Complainant,
vs.
PEOPLE OF THE STATE OF
)
ILLINOIS, ex. reI. LISA MADIGAN,
)
Attorney General of the State of Illinois, )
)
)
)
)
)
)
)
)
)
)
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
CHAMPION ENVIRONMENTAL SERVICES, INC., ("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 in Section III. A and IlI.B herein 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 in
Section
liLA and IlI.B 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 its validity
in any subsequent proceeding to implement or
enforce the 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. (2004).
-1-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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.
III.
STATEMENT
OF FACTS
A.
Parties
1. On May 23, 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 31 of the Act, 4151LCS 5/31(2004), 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 (2004).
3. At all times relevant to the Complaint, Respondent was and is a Wisconsin
. corporation that has filed a certificate of authority to transact business in Illinois in good
standing. The registered agent for Champion is Barbara J. Gorniak, 38
West End Drive,
Gilberts, Kane County, Illinois 60136..
B. Site Description
1. CNH America LLC of East Moline is the owner of the former Case manufacturing
facility located at 1100 Third Street in East Moline, Rock Island County, Illinois. The size. of the
facility
is approximately two million five hundred thousand (2,500,000) square feet. CNH
America LLC contracted Champion to remove approximately fifteen thousand linear feet of
regulated asbestos containing material ("RACM"), ten thousand (10,000) square feet of
Category I non-friable asbestos containing material ("ACM"), and two million ten thousand
(2,010,000) square feet of Category II non-friable ACM, prior to the demolition of the facility.
-2-
Electronic Filing - Received, Clerk's Office, September 2, 2008
2. Champion submitted a notification of the asbestos abatement and demolition project
to the Illinois EPA
on February 14, 2005. The project commenced on or after February 24,
2005. Champion subsequently submitted a revised notification
of the asbestos abatement and
demolition project to the Illinois EPA on March 23, 2005.
C.
Allegations of Non-Compliance
Complainant contends that the Respondent has
violated
the following provisions of the
Act and Board regulations:
Count
I:
Count II:
D. Non-Admission of Violations
Violation of the National Emissions
Standards for Asbestos, in violation
of
Section 9.1(d) ofthe Act, 415 ILCS
9.1 (d)(2004) and 40 CFR
§61.145(c)(1 ),(6) and 40 CFR
§61.150(b)(1).
Air Pollution Violations,
in violation of,
4151LCS 9(a),
9.1 (d)(2004) and 40
CFR §61.150(a), and 35 III. Adm. Code
201.141.
The Respondent represents that it has entered into this Stipulation for the purpose
of
settling and compromising disputed claims without having to incur the expense of contested
litigation. By entering into this Stipulation and complying with its terms, the Respondent
contests and does not affirmatively admit the allegations
of violation within the Complaint and
referenced within Section III.C herein, and this Stipulation shall not be interpreted
as including
such admission.
IV. APPLICABILITY
This StipUlation shall apply to and be binding upon the Complainant and 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,
-3-
Electronic Filing - Received, Clerk's Office, September 2, 2008
agents, employees or successors or assigns to take such action as shall be required to comply
with the provisions
of 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
III. 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 from such
pollution source; and
5. any subsequent compliance.
In response to these factors, the parties state the following:
1. The Complainant alleges that human health and the environment were threatened by
any emission of asbestos.
2. There is social and economic benefit to the Respondent's operations.
3. The facility was suitable for the area in which it was located.
4. The parties agree that compliance with the requirements of the Act, Board
-4-
Electronic Filing - Received, Clerk's Office, September 2, 2008
regulations, and the 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)(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 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 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 alleges that the Respondent failed to properly conduct asbestos removal
operations at the site beginning
on or around May 5, 2005. The Illinois EPA reinspected the
facility
on May 11, 2005, and determined that the removal and disposal activities at the site
-5-
Electronic Filing - Received, Clerk's Office, September 2, 2008
were in compliance with applicable laws and regulations at that time.
2. Respondent represents
that it was diligent in its compliance with the Act, Board
regulations and applicable federal regulations, prior to and sUbsequent to the Illinois EPA's
notification
of its alleged noncompliance.
3. Complainant alleges that Respondent derived a nominal economic benefit by not
using the proper and approved method for asbestos removal; however, the civil penalty amount
exceeds any economic benefit that may have been enjoyed by the Respondent.
4. Complainant has determined, based upon the specific facts of this matter, that a
penalty of thirty four thousand dollars ($34,000.00) will serve to deter further violations and aid
in future voluntary compliance with the Act and Board regulations.
5. To Complainant's knowledge, Respondent has one previously adjudicated violation of
the Act, PCB 1997-135, which related to an alleged improper notification of asbestos removal
and was resolved by settlement and stipulation.
6. Self-disclosure is not at issue in this matter.
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 four thousand dollars
($34,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
The payment
of the civil penalty shall not be construed as an admission of any fact or allegation
but is paid for settlement purposes only. The penalty described in this Stipulation shall be paid
by certified check or money order payable to the Illinois EPA, designated to the Illinois
Environmental Protection
Trust Fund and submitted to:
Illinois Environmental Protection Agency
Fiscal Services Section
-6-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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), shall appear
on the check. A copy of the certified check or money order and any
transmittal letter shall be
sent to:
J. Homan
Assistant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
Christopher Pressnail
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) (2004), 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 (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 contacted through
counsel at the following address:
Jennifer T. Nijman
-7-
Electronic Filing - Received, Clerk's Office, September 2, 2008
Winston & Strawn, LLP
35
West Wacker Drive
Chicago, IL 60601-9703
4.
In the event of default of this Section VIII.A, the Complainant shall be entitled to all
available relief for payment
of the civil penalty including, but not limited to, reasonable costs of
collection and reasonable attorney's fees.
B. 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.
C. Release from Liability
In consideration of the Respondent's payment of the $34,000.00 penalty and
commitment to Cease and Desist as contained
in Section VIII.B 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 the Respondent from any further liability or
penalties for violations of the Act and Board Regulations that were the SUbject matter
of the
Complaint. The release set forth above does not extend to any matters other than those
expressly specified
in Complainant's Complaint filed on May 23, 2005, or which could have
been raised in the Complaint filed before the Illinois Pollution Control Board. 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
-8-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 Section 3.315 of the Act, 415 ILCS 5/3.315, or entity other than the Respondent.
D.
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 does not approve and accept this Stipulation and
Proposal for Settlement, then neither party
is bound by the terms herein.
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
MATIHEW
J.
DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
THOMAS DAVIS, Chief
-9-
DATE:
_
Electronic Filing - Received, Clerk's Office, September 2, 2008
Environmental Bureau
Assistant Attorney General
CHAMPION ENVIRONMENTAL SERVICES,
DATE:.
_
INC.
BY:
-----------
Name:
_
Title:
_
-10-
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 7
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
!;!!jman, Jennifer
From:
Sent:
To:
Cc:
Subject:
Attachments:
Homan, Javonna [JHoman@alg.slate.il.us]
Wednesday, December 05,20074:14
PM
Nijman, Jennifer
Davis, Thomas E.
slipdraflchampionrespondentversion2
slipdraflchampionrespondentversion2.wpd
«stipdraftchampionrespondentversion2.wpd» Ma'am, I think I've gotten the changes - I
removed
the extra period on pg 2, IIIA3. I checked my version and pg 8, Section (d) had the
word "Stipulation" - it should show up on this one. I think I included the sentence as you
suggested "As such, this Stipulation shall not constitute a previously adjudicated
violation," on pg 3, lIID.
As for signature, we would like this to be executed by your client as soon as possible -
would
it be possible to get it signed this week? We may be filing this document without
IEPA's signature.
stipdraftchampionrespondentversion2
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 8
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
NIJ M A I\l • FRAN Z E
TT
I LtP •
JenniferT. Nijman
jn@nijmanfranzettLcom
March 6, 2008
BY FEDERAL EXPRESS
Ms. Javonna
L.
Homan
Assistant Attorney General
Environmental Enforcement Bureau
Office
ofthe illinois Attorney General
500 South Second Street
Springfield, IL 62706
10 South laSalle Street. Suite 3600 . Chicago, liIinois 60603
312.251.5250 . fax 312.251.4610 . www.nijmanfranzetti.com
Susan M. Franzetti
sf@nijmanfranzettLcom
Re:
State of Illinois v. Champion Environmental Services, Inc.
No. 05-199 - Stipulation and Proposal for Settlement
Dear Ms. Homan:
Enclosed are three copies
ofthe signed settlement agreement. Please have IEPA
execute the agreement so
we may present it to the Illinois Pollution Control Board.
If you have any questions, please do not hesitate to contact me.
JTNllbb
Enclosure
(DDDD4254,DOC;)
Very truly yours
J=~~
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CHAMPION ENVIRONMENTAL
SERVICES, INC., an
Wisconsin
corporation,
No. 05-199
Respondent.
Complainant, )
vs.
PEOPLE OF THE STATE OF
)
ILLINOIS, ex. reI. LISA MADIGAN, )
Attorney General of the State of Illinois, )
)
)
)
)
)
)
)
)
)
STIPULATION AND PROPOSAL FOR SETILEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attomey
General
of the State of Illinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
CHAMPION ENVIRONMENTAL SERVICES, INC., ('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 in
Section III. A and III.B herein 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 in Section III.A
and III.B 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 its validity
in any subsequent proceeding to implement or enforce the terms.
I. JURISDICTION
The Board has jUrisdiction
of the subject mailer herein and of the parties consenting
hereto pursuant to the Illinois Environmental Protection
Act ("Act"), 415 ILCS 5/1 et seq. (2004).
II. AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by
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Electronic Filing - Received, Clerk's Office, September 2, 2008
the party whom they represent to enter into the terms and conditions of this Stipulation and to
legally bind them to it.
III. STATEMENT OF FACTS
A. Parties
1. On May 23, 2005, a Complaint was filed on behalf of the People of the State of Illinois
by Lisa Madigan, Attomey 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 (2004), 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 (2004).
3. At all times relevant to the Complaint, Respondent was and is a Wisconsin corporation
that has filed a certificate
of authority to transact business in Illinois in good standing. The
registered agent for Champion is Barbara
J.
Gomiak, 38 West End Drive, Gilberts, Kane County,
Illinois 60136.
B. Site
Description
1. CNH America LLC of East Moline is the owner of the former Case manufacturing
facility located at 1100 Third Street in East Moline, Rock Island County, Illinois. The size
of the
facility is approximately two million five hundred thousand (2,500,000) square feet. CNH
America LLC contracted Champion to remove approximately fifteen thousand linear feet
of
regulated asbestos containing material ("RACM"j, ten thousand (10,000) square feet of Category
I non-friable asbestos containing material
("ACM"), and two million ten thousand (2,010,000)
square feet
of Category II non-friable ACM, prior to the demolition of the facility.
2. Champion submitted a notification of the asbestos abatement and demolition project to
the Illinois
EPA on February 14, 2005. The project commenced on or after February 24,2005.
Champion subsequently submitted a revised notification of the asbestos abatement and
-2-
Electronic Filing - Received, Clerk's Office, September 2, 2008
demolition project to the Illinois EPA on March 23, 2005.
C. Allegations of Non-Gompliance
Complainant contends that the Respondent has violated the following provisions of the
Act and Board regulations:
Count I:
Count II:
D. Non-Admission of Violations
Violation of the National Emissions
Standards
for Asbestos, in violation of
Section 9.1 (d) of the Act, 415 ILCS
9.1 (d)(2004)
and 40 CFR
§61.145(c)(1 ),(6)
and 40 CFR
§61.150(b)(1).
Air Pollution Violations, in violation of,
415 ILCS 9(a), 9.1 (d)(2004) and
40
CFR §61.150(a), and 35 III. Adm. Code
201.141.
The Respondent represents that it has entered into this Stipulation for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
litigation. By entering into this Stipulation
and complying with its terms, the Respondent contests
and does not
affirmatively
admit the allegations of violation within the Complaint and referenced
within Section III.C herein, and this Stipulation shall not be interpreted
as including such
admission.
As such, this Stipulation shall not constitute a previously adjudicated
violation.
IV.
APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and 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.
-3-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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
III. Adm. Code, Subtitles A through H.
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON.COMPLIANCE
Section 33{ c)
of the Act, 4151LCS 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 from such
pollution source; and
5. any subsequent compliance.
In response to these factors. the parties state the following:
1. The Complainant alleges that human health and the environment were threatened
by any
emission
of asbestos.
2. There is social and economic benefit to the Respondent's operations.
3. The facility was suitable
for the area in which it was located.
4. The parties agree that compliance with the requirements
of the Act, Board regulations, and
the 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
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Electronic Filing - Received, Clerk's Office, September 2, 2008
Section 42(h) of the Act, 415 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 altemative
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 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 alleges
that the Respondent failed to properly conduct asbestos removal
operations at the site beginning on
or around May 5, 2005. The Illinois EPA reinspected the
facility on May 11, 2005,
and determined that the removal and disposal activities at the site were
in compliance with applicable laws and regulations at that time.
2. Respondent represents that it was diligent in its compliance with the Act, Board regUlations
and applicable federal regulations, prior to and subsequent to the Illinois EPA's notification of its
alleged noncompliance.
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Electronic Filing - Received, Clerk's Office, September 2, 2008
3. Complainant alleges that Respondent derived a nominal economic benefit by not using the
proper and approved method for asbestos removal; however, the civil penalty amount exceeds
any economic benefit that
may have been enjoyed by the Respondent.
4. Complainant has determined, based upon the specific facts
of this matter, that a penalty of
thirty four thousand dollars ($34,000.00) will serve to deter further violations and aid in future
voluntary compliance with
the Act and Board regulations.
5. To Complainant's knowledge, Respondent has one previously adjudicated violation of the Act,
PCB 1997-135, which related to an alleged improper notification
of asbestos removal and was
resolved by settlement and stipulation.
6. Self-disclosure is not at issue in this matter.
7.
The settlement of this matter does not include a supplemental environmental project.
VIII. TERMS
OF SElTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of thirty four thousand dollars
($34,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
The payment
of the civil penalty shall not be construed as an admission of any fact or allegation
but is paid for settlement purposes only. The penalty described in this Stipulation shall be paid
by certified check
or money order payable to the Illinois EPA, designated to the Illinois
Environmental Protection
Trust Fund and submitted to:
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), shall appear on the check. A copy
of the certified check or money order and any
-6-
Electronic Filing - Received, Clerk's Office, September 2, 2008
transmittal letter shall be sent to:
J.
Homan
Assistant Attomey General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62702
Christopher Pressnall
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
2. Pursuantto 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 allowable
under Section 1003(a)
of the Illinois Income Tax Act, 351LCS
5/1003
(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 contacted through
counsel at the following address:
Jennrrei T. Nijman
Winston & Strawn, LLP
35
West Wacker Drive
Chicago, IL 60601-9703
4.
In the event of default of this Section VIII.A, the Complainant shall be entitled to all
available relief for payment
of the civil penalty including, but not limited to, reasonable costs of
collection and reasonable attorney's fees.
-7-
Electronic Filing - Received, Clerk's Office, September 2, 2008
B. 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 Seelion III.C
("Allegations
of Non-Compliance") of this Stipulation.
C.
Release from Liability
In consideration of the Respondent's payment of the $34,000.00 penalty and
commitment to Cease and Desist as contained in Section VIII.B 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 the Respondent from any further liability or
penalties
for violations of the Ael and Board Regulations that were the SUbject matter of the
Complaint. The release
set forth above does not extend to any matters other than those
expressly specified
in Complainant's Complaint filed on May 23,2005, or which could have been
raised in the Complaint filed before the Illinois Pollution Control Board. 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 orjudicial, 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 3.315
of the Act, 415 ILCS 5/3.315, or entity other than the Respondent.
D. Enforcement of Board Order
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Electronic Filing - Received, Clerk's Office, September 2, 2008
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 does not approve and accept this Stipulation and Proposal
for Settlement, then neither party is bound by the terms herein.
WHEREFORE, Complainant and Respondent request that the Board adopt and accept
the
foregoing Stipulation and Proposal for Settlement as written.
PEOPLE
OFTHE STATE OF ILLINOIS,
MATTHEW
J.
DUNN, Chief
Environmental EnforcemenV
Asbestos Litigation Division
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attomey General
DATE:.
_
CHAMPION ENVIRONMENTAL SERVICES, DATE:
3-
tf-tJf(
INC.
-9-
Electronic Filing - Received, Clerk's Office, September 2, 2008
By::D~~~
Name:
1':)Dm I b I"V
(.,:.b
an I
""K.
Title:
VetJ'3.
l
Q
t;yQ
-10-
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT 9
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
Nijman, Jennifer
From:
Sent:
To:
Cc:
Subject:
Homan, Javonna [JHoman@atg.state.il.us]
Thursday, December
13, 2007 9:26 AM
Nijman, Jennifer
Davis, Thomas E.
RE:
stipdraftchampionrespondentversion2
Ma I am -
The Illinois Attorney General's Office made the decision to delete the references to the
Illinois Environmental Protection Agency in the initial paragraph, and in Section lA,
paragraphs 1 & 2. There is a disagreement between the IAGO and the IEPA as to the role of
the IEPA in litigation such as the Champion matter. It is the position of our office that
the IEPA has been overreaching in our interactions during litigation. I am sure you, or at
least your client, would agree that is at least occasionally the case in his dealings with
representatives of the IEPA.
Regarding
future use/penalties, the IEPA may only be bound in legal actions by the Attorney
General. In this case, any future claims regarding these alleged violations will be
precluded by the operation of law, and, as a practical matter, it is the IAGO who would
oversee any possible future use of this matter in designating a penalty in some future case.
If your concern is for future NESHAP notices, the IEPA has no discretion to refuse a NESHAP
notice and cannot hold the settlement against your client in the ordinary conduct of the
Agency's business.
This message and any attachments may contain confidential/privileged information protected by
the attorney-client or attorney work product privilege. If you are not the intended
recipient, please notify the sender immediately and delete the original message and any
attachments.
Thank you.
J.Homan,
AAG
Environmental Bureau
-----Original Message-----
From: Nijman, Jennifer [mailto:JNijman@winston.com]
Sent: Wednesday, December 12, 2007 11:39 AM
To: Homan, Javonna
Subject: RE: stipdraftchampionrespondentversion2
Would you please explain why IEPA wants their name taken out of this
settlement given that they are the "client" and the money is being paid
to the IEPA trust fund? in addition, I want to ensure that IEPA is bound
by this agreement as to future use and penalties - this change suggests
they do not believe they are bound? This is a significant change we may
want to raise to the hearing officer. This is like me, as lawyer,
signing this agreement instead of Champion - the party. thanks
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
!:!!jman, Jennifer
To:
Subject:
C1().Nv~
;> ----------
Homan, Javonna
RE: stipdraftchampionrespondenlversion2
Would you please explain why IEPA wants their name taken out of this settlement given that they are
the "client" and the money
is being paid to the IEPA trust fund? in addition, I want to ensure that
IEPA
is bound by this agreement as to future use and penalties - this change suggests they do not
believe they are bound? This is a significant change
we may want to raise to the hearing officer. This
is like me, as lawyer, signing this agreement instead of Champion - the party. thanks
--Original Message-
From: Homan, Javonna [mailto:JHoman@atg.state.iLus]
Sent: Wednesday, December
12,20079:13 AM
To: Nijman, Jennifer
Subject: RE: stipdraftchampionrespondentversion2
Ma'am - I very much appreciate your efforts to rushing the stip for
signature as I asked. I am sorry to say
that those changes are
necessary.
This message and any attachments may contain confidential/privileged
information protected by the attorney-client
or attorney work product
privilege.
If
you are not the intended recipient, please notify the
sender immediately and delete the original message
and any attachments.
Thank you.
J.Homan,
AAG
Environmental Bureau
-Original Message---
From: Nijman, Jennifer [mailto:JNijman@winston.com]
Sent: Tuesday, December 11,
20074:50 PM
To: Homan, Javonna
Subject: RE: stipdraftchampionrespondentversion2
On your request to rush this, I've already sent the prior version to the
client for signature. Are these changes absolutely necessary?
---Original Message--
From: Homan, Javonna [mailto:JHoman@atg.state.iLus]
Sent: Tuesday, December
11, 20074:01 PM
To: Nijman, Jennifer
Subject: stipdraftchampionrespondentversion2
«stipdraftchampionrespondentversion2.wpd» Ma'am - I have been
instructed to rnake a couple small revisions to this draft - they are
removal
of references to the Illinois Environmental Protection Agency in
the prefatory paragraph and paragraphs 1
&
2 in Section LA Here is .
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
the revised version. Please let me know your position on this version
when you can. Thank you.
stipdraftchampionrespondentversion2
The contents of this message may be privileged and confidential.
Therefore, if this message has been received
in error, please delete it
without reading it. Your receipt
of this message is not intended to
waive any applicable privilege. Please do not disseminate this message
without the permission
of the author.
************************************************************************
******
Any tax advice contained in this email was not intended to be used, and
cannot be used, by you (or any other taxpayer) to avoid penalties under
the Internal Revenue Code
of 1986, as amended.
2
Electronic Filing - Received, Clerk's Office, September 2, 2008
---Original Message---
From: Homan, Javonna [mailto:JHoman@atg.state.il.us]
Sent: Tuesday, December
11,
20074:01
PM
To: Nijman, Jennifer
Subject: stipdraftchampionrespondentversion2
«stipdraftchampionrespondentversion2.wpd» Ma'am - I have been
instructed
to make a couple small revisions to this draft - they are
removal
of references to the Illinois Environmental Protection Agency in
the prefatory paragraph and paragraphs 1 & 2 in Section I. A. Here is
the revised version. Please let me know your position on this version
when you can. Thank you.
stipdraftchampionrespondentversion2
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
No. 05-199
)
Respondent.
Complainant, )
CHAMPION ENVIRONMENTAL
SERVICES, INC.,
an Wisconsin
corporation,
vs.
PEOPLE OF THE STATE OF
ILLINOIS, ex. rei. LISA MADIGAN, )
Attorney General of the State of Illinois, )
)
)
)
)
)
)
)
)
)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attomey
General
of the State of Illinois, and CHAMPION ENVIRONMENTAL SERVICES, INC.,
("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
offacts contained in Section III. A and III.B herein 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 in Section liLA and III.B 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 its validity
in any subsequent
proceeding to implement
or enforce the 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. (2004).
II. AUTHORIZATION
The undersigned representatives for each party certify that they are fully authorized by
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Electronic Filing - Received, Clerk's Office, September 2, 2008
the party whom they represent to enter into the terms and conditions of this Stipulation and to
legally bind them to
it.
III. STATEMENT OF FACTS
A.
Parties
1.
On May 23, 2005, a Complaint was filed on behalf of the People of the State of Illinois
by Lisa Madigan, Attomey General
of the State of Illinois, pursuant to Section 31 of the Act, 415
ILCS 5/31(2004),
againstthe Respondent.
2.
At all times relevant to the Complaint, Respondent was and is a Wisconsin corporation
that has filed a certificate
of authority to transact business in Illinois in good standing. The
registered agent for Champion is Barbara
J.
Gomiak, 38 West End Drive, Gilberts, Kane County,
Illinois 60136.
B. Site Description
1. CNH America LLC
of East Moline is the owner of the former Case manufacturing
facility located at 1100 Third Street in East Moline, Rock Island County, Illinois. The size
of the
facility
is approximately two million five hundred thousand (2,500,000) square feet. CNH
America LLC contracted Champion to remove approximately fifteen thousand linear feet
of
regulated asbestos containing material ("RACM"), ten thousand (10,000) square feet of Category
I non-friable asbestos containing material ("ACM"),
and two million ten thousand (2,010,000)
square feet
of Category II non-friable ACM, prior to the demolition of the facility.
2. Champion submitted a notification
of the asbestos abatement and demolition project to
the Illinois EPA on February 14, 2005. The project commenced on or after February 24, 2005.
Champion subsequently submitted a revised notification
of the asbestos abatement and
demolition project to the Illinois EPA on March 23, 2005.
C. Allegations
of Non-Compliance
Complainant contends that the Respondent has violated the following provisions
of the
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Electronic Filing - Received, Clerk's Office, September 2, 2008
Act and Board regulations:
Count
I:
Count II:
D. Non-Admission
of Violations
Violation of the National Emissions
Standards for Asbestos,
in violation of
Section 9.1 (d) of the Act, 415 ILCS
9.1 (d)(2004) and 40 CFR
§61.145(c)(1 ),(6) and 40 CFR
§61.150(b)(1
).
Air Pollution Violations, in violation of,
415 ILCS 9(a),
9.1 (d)(2004) and 40
CFR §61.150(a), and 35 III. Adm. Code
201.141.
The Respondent represents that it has entered into this Stipulation for the purpose
of
settling and compromising disputed claims without having to incur the expense of contested
litigation.
By entering into this Stipulation and complying with its terms, the Respondent contests
and does
not affirmatively admit the allegations of violation within the Complaint and referenced
within Section III.C herein, and this Stipulation shall not be interpreted as including such
admission. As such, this Stipulation shall not constitute a previously adjudicated violation.
IV. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and 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.
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
-3-
Electronic Filing - Received, Clerk's Office, September 2, 2008
Board regulations, 35 III. Adm. Code, Subtitles A through H.
VI. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33( c) of the Act, 4151LCS 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 from such
pollution source; and
5. any subsequent compliance.
In response to these factors, the parties state the following:
1. The Complainant alleges that human health and the environment were threatened by any
emission
of asbestos.
2. There is social and economic benefit to the Respondent's operations.
3. The facility was suitable
for the area in which it was located.
4. The parties agree that compliance with the requirements
of the Act, Board regulations, and
the asbestos NESHAP
is both technically practicable and economically reasonable.
5. Respondent has subseq uently complied with the Act and the Board RegUlations.
VII. CONSIDERATION OF SECTION
421h)
FACTORS
Section 42(h) of the Act, 415 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:
-4-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 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 alleges that the Respondent failed to properly conduct asbestos removal
operations
at the site beginning on or around May 5, 2005. The Illinois EPA reinspected the
facility on May 11, 2005, and determined that the removal and disposal activities at the site were
in compliance with applicable laws and regulations at that time.
2. Respondent represents that it was diligent in its compliance with the Act, Board regulations
and applicable federal regUlations, prior to and subsequent to the Illinois EPA's notification
of its
alleged noncompliance.
3. Complainant alleges that Respondent derived a nominal economic benefit by not using the
proper and approved method for asbestos removal; however, the civil penalty amount exceeds
any economic benefit that
may have been enjoyed by the Respondent.
-5-
Electronic Filing - Received, Clerk's Office, September 2, 2008
4. Complainant has determined, based upon the specific facts of this matter, that a penalty of
thirty four thousand dollars ($34,000.00) will serve to deter further violations and aid in future
voluntary compliance with the Act and Board regulations.
5.
To Complainant's knowledge, Respondent has one previously adjudicated violation of the Act,
PCB
1997-135,
which related to an alleged improper notification of asbestos removal and was
resoived by settlement and stipulation.
6.
Self-disclosure is not at issue in this matter.
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 four thousand dollars
($34,000.00) within thirty (30) days from the date the Board adopts and accepts this Stipulation.
The payment
of the civil penalty shall not be construed as an admission of any fact or allegation
but
is paid for settlement purposes only. The penalty described in this Stipulation shall be paid
by certified check or money order payable to the Illinois EPA, designated to the Illinois
Environmental Protection Trust Fund and submitted to:
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), shall appear on the check. A copy
of the certified check or money order and any
transmittal letter shall be sent to:
J.
Homan
Assistant Attomey General
Environmental Bureau
500 South Second Street
-6-
Electronic Filing - Received, Clerk's Office, September 2, 2008
Springfield, Illinois 62702
Christopher Pressnall
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
2. Pursuantlo 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 allowable
under Section 1003(a) of the Illinois Income Tax Act, 35 ILCS 5/1003 (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 contacted through
counsel at the following address:
Jennifer T. Nijman
Winston
& Strawn, LLP
35
West Wacker Drive
Chicago, IL 60601-9703
4. In the event
of default of this Section VIII.A, the Complainant shall be entitled to all
available relief for payment
of the civil penalty including, but not limited to, reasonable costs of
collection and reasonable attorney's fees.
B. 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
-7-
Electronic Filing - Received, Clerk's Office, September 2, 2008
("Allegations of Non-Compliance") of this Stipulation.
C. Release
from
Liability
In consideration of the Respondent's payment of the $34,000.00 penalty and
commitment to Cease and Desist as contained in Section VIII.B 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 the Respondent from any further liability
or
penalties for violations of the Act and Board Regulations that were the subject matter of the
Complaint. The release set forth above does not extend to any matters other than those
expressly specified in Complainant's Complaint filed on May 23, 2005, or which could have been
raised in the Complaint filed before the Illinois Pollution Control Board. 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
Section 3.315 of the Act, 415 ILCS 5/3.315, or entity other than the Respondent.
D. 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.
-8-
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 does not approve and accept this Stipulation and Proposal
for Settlement, then neither party
is bound by the terms herein.
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,
MATIHEW
J.
DUNN, Chief
Environmental Enforcementl
Asbestos Litigation Division
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
DATE:
_
CHAMPION ENVIRONMENTAL SERVICES, DATE:
_
INC.
BY:
---------
Name:
_
Title:
_
-9-
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT
10
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
!::!!jman, Jennifer
From:
Sent:
To:
Subject:
Nijman, Jennifer
Wednesday, December 19, 2007 12:02
PM
lHoman, Javonna
'
RE: Stipulation
that would be fine - it's the version I had already sent to the client. I assume IEPA will sign as well. thanks
From: Homan, Javonna [mailto:JHoman@atg.state.il.us]
Sent: Tuesday, December 1B, 2007 11:19 AM
To: Nijman, Jennifer
Subject: Stipulation
Ma'am, if your client would prefer the version
of the stipulation that includes signoff by the Agency, I am now
authorized
to route it that way.
J.Homan, AAG
Environmental Bureau
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT
11
People v. Champion Environmental Services, Inc.
PCB No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
ILLINOIS POLLUTION CONTROL BOARD
March 10, 2008
RECEIVED
CLERK'S
OFFICE
MAR
10 2008
STATE
OF
ILLINOIS
Pollution Control
Board
PEOPLE OF THE STATE
OF ILLINOIS,
Complmnant,
v.
CHAMPION ENVIRONMENTAL
SERVICES, INC.,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB 05-199
(Enforcement - Air)
HEARING OFFICER ORDER
On March 10,2008, the parties participated in a telephone status conference with the
hearing officer. The illinois Environmental Protection Agency (Agency) has requested changes
to the settlement agreement to clarify that the Agency is a party to the proceeding. When
complmnant receives the revised settlement agreement from the Agency, it will be sent to the
respondent.
The parties are directed to participate in a telephone status conference with the hearing
officer at.11 :00 a.m. on
May 12, 2008. The status conference shall be initiated by the
complmnant.
IT IS SO ORDERED.
Carol Webb
Hearing Officer
lIIinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, 1IIinois 62794-9274
217/524-8509
webbc@ipcb.state.il.us
Electronic Filing - Received, Clerk's Office, September 2, 2008
CERTIF1CATE OF SERV1CE
It
is hereby certified that true copies of the foregoing order were mailed, first
class, on March
10,2008, to each of the persons on the attached service list.
It
is hereby certified that a true copy of the foregoing order was hand delivered to
the following on
March 10,2008:
John T. Therriault
lllinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Carol Webb
Hearing Officer
lllinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, lllinois 62794-9274
217/524-8509
webbc@ipcb.state.il.us
•
Electronic Filing - Received, Clerk's Office, September 2, 2008
PCB 2005-199
Javonna Homan
Office
ofthe Attorney General
Environmental Bureau
500 South Second Street
Springfield,
IL 62706
PCB 2005-199
Katherine P. O'Halleran
Winston
&
Strawn
35 West Wacker Drive
Suite 4200
Chicago, IL 60601-9703
3
PCB 2005-199
Jennifer T. Nijman
Winston
&
Strawn
35 West Wacker Drive
Suite 4200
Chicago, IL 60601-9703
PCB 2005-199
Barbara
J. Gorniak,
R.
A.
Champion Environmental Services, Inc.
38 West End Drive
Gilberts, IL 60136
Electronic Filing - Received, Clerk's Office, September 2, 2008
EXHIBIT
12
People v. Champion Environmental Services, Inc.
PCB
No. 05-199
Electronic Filing - Received, Clerk's Office, September 2, 2008
Nijrnan, Jennifer
From:
Sent:
To:
Subject:
Nijman, Jennifer
Thursday, May 22, 2008 2:22 PM
Homan, Javonna
RE:
Champion slip
Javonna, I
just received in the mail the hard copy, redline of the Settlement. i am very concerned and disappointed that
your client has simply reneged on all the agreements in language that we previously reached. My understanding was
that the only issue left was the inclusion of IEPA in the Settlement. Instead, agreements we made back in September
have simply been ignored (please
refer back to my letter of Sept 21 and the subsequent agreements in language). This
is not acceptable and presents many issues of good faith and potential breach of our agreement. It is a waste of my
client's money to go over these terms yet again. If your client will not agree to return to the substantive agreement we
previously negotiated, I will bring this to the attention of the Hearing Officer for further discussion. Please let me know
how your client would like to proceed.
Jennifer Nijman
Nijman Franzetti
LLP
10
s.
LaSalle St., Suite 3600
Chicago,
IL 60603
312-251-5255 Direct
312-251-5250 General
Please note
that effective February 1, 2008 the firm name has changed to Nijman Franzetti LLP and my e-mail address
has changed to jn@niimanfranzettLcom.
This
Internet message may contain information that is privileged, confidential, and exempt from disclosure.
It is intended for use only by the person to whom it is addressed. If you have received this in error, please (1) do not
forward or use this information in any way; and (2) contact me immediately.
1
Electronic Filing - Received, Clerk's Office, September 2, 2008
Lisa Madigan
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
May 20, 2008
Ms.
Jennifer Nijman
Attorney at
Law
Nijman & Franzetti
10
S. LaSalle Street, Ste. 3600
Chicago, IL 60603
Re:
People v. Champion
PCB No. 05-199
Dear Jennifer:
Enclosed is a copy
of the proposed Stipulation and Proposal for Settlement, along with a
red-lined copy
for your reference. Ifthe settlement meets with your approval, please have it signed
by your client and return to us
for filing.
Thank you for your consideration in this matter.
vonna Homan
Assistant Attorney General
Environmental Bureau
Springfield, IL 62706
JH/pjk
Enclosure
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • ITY: (217) 785-2771 • Fax: (217) 782-7046
100 West Randolph Street,
Chicago, Illinois 60601 • (312) 814-3000 • TTY: (312) 814-3374 • Fa.x: (312) 814-3806
Electronic Filing - Received, Clerk's Office, September 2, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
)
)
Complainant,
)
)
~
)
)
CHAMPION ENVIRONMENTAL SERVICES,
)
INC., a Wisconsin corporation,
)
)
Respondent.
)
PCB NO. 05-199
(Enforcement)
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 CHAMPION ENVIRONMENTAL SERVICES, INC., a Wisconsin corporation,
("Respondent"
or "Champion"), have agreed to the making oftbis Stipulation and Proposal for
Settlement ("Stipulation") and submit it to the Illinois Pollution Control Board ("Board") for
approval.
TIns stipulation of facts is made and agreed upon for purposes of settlement only and
as a factual basis for the
Board's approval oftins Stipulation and issuance ofrelief. None of the
facts stipulated herein shall
be introduced into evidence in any other proceeding: regarding the
violations
of tile Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1
et seq.
(20"06), and
the Board'sRegulations. alleged in
llie Complaint except as ollierwise provided herein.
It
is the
intent
nfllie parties to tbis Stipulation that it be a final adjudication oftbis matter.
I
I. JURlSDIC'I'ION'
The Board has j tnisdiction oHhe stlbjeet matter herein and of the pmties eonsenting
hereto ptnSllant
to the Illinois Enviromnental
Pro~-eetiol1
Aet ("Act"), 415 !LOS 5/1 et seq.
l
Electronic Filing - Received, Clerk's Office, September 2, 2008
(2004).
H. AUl'HORIZATION
Thc ttIidcrsigncd rcpICscntativcs for cachparty cCltify that thcy.arc fully anthoriz:cd by
thc party whom they rcprcscnt to cnter into thc terms and conditions of flus Stiptllation atld to
legally bind fllcm to it.
I. STATEMENTOFFACTS
A.
Parties to the Stipulation
1.
On
May 23,2005, a Complaint was filed on behalf of the People of the State of
Illinois by Lisa Madigan, Attorney General ofthe State of Illinois, on her own motion and upon
the request of the Illinois EPA, pursuant to Section 31 ofthe Act, 415ILCS 5/31 (2006), against
the Respondent.
2..
The Illinois
EPA is an administrative agency ofthe State ofIllinois, created
pursuant to Section 4 of the Act, 415 ILCS 5/4 (2006).
3.
At
all
times relevant to the Complaint, Respondent was and is a Wisconsin
corporationin good standing that is authorized to transact business in the State ofIllinois. The
Registered Agent for Champion is Barbara J. Gorniak, 38 West End Drive, Gilberts, Kane
County, illinois.
B. Site DesCi iptioIl
4.
CNH AmericaLLC of East Moline is the owner ofthe former Case
\
manufacturing facility located at 1100 Third Street in East Moline, Rock Island County, Illinois
("Site").
The size ofthe facility is approximately two million five hundred thousand (2,500,000)
square feet.
CNH America LLC contracted Champion to remove approximately fifteen thousand
2
Electronic Filing - Received, Clerk's Office, September 2, 2008
Cl5,000) linear feet of regulated asbestos containing material ("RACM"), ten thousand (l0,000)
square feet
of Category 1non-friable asbestos containing material ("ACM"), and two million ten
thousand (2,010,000) square feet
of Category II non-friable ACM, prior to the demolition ofthe
facility.
5.
Champion submitted a notification of the asbestos abatement and demolition
project to the Illinois EPA
on February 14, 2005. The project commenced on or after February
24,2005. Champion subsequently submitted a revised notification
ofthe asbestos abatement
and demolition project to
the Illinois EPA on March 23, 2005.
€B.
Allegations of Non-Compliance
Complainant and the Illinois EPA contend that the Respondent has violated the following
provisions
ofthe Act and Board regulations:
Count I:
Count II:
Violation
ofthe National Emissions Standards for Asbestos
("NESHAP"), in violation
of Section 9.1 (d) of the Act, 415
lLCS 9.I(d) (2006) and 40 CFR Section 61.145(c)(l)
&
(6), and 40 CFR Section 61.150(b)(1).
Air Pollution Violations,
in violation of 415lLCS 9(a),
9.l(d) (2006), and 40 CFR Section 61.150(a), and 35 Ill.
Adm. Code 201.141.
'
DC.
Non-Admission
of Violations
. The Respondent represents that
it has entered into this Stipulation for the purpose of
settling and compromising disputed claims without having to incur the expense of contested
litigation. By entering into this Stipulation and complying with its terms, the Respondent
contests
and does not affirmatively admit the allegations of vioration within the Complaint and
referenced within Section 1lI.C herein, and this Stipulation shall not be interpreted as including
3
Electronic Filing - Received, Clerk's Office, September 2, 2008
WII. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant, the JJlinois EPA
and the Respondent, and any officer, director, agent, or employee ofthe 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, This Stipulation mav be used against the Respondent in
any subseguent ertforcement action or pennit proceeding as proof of a past adjudication of
violation ofthe Act and the Board Regulations for all violations alleged in the Complaint in this
matter:forpurposes
of Sections 39 and 42 ofthe Act, 415 JLCS 5/39. and 42 (2006),
V. COi\;frLIANCE '?8THOTHER
LA';VS
ANDREeULATlONS
Tins Stipulation inllo "<1) affects the rcspUl1sibilitics ofthe Respondent to eompl) with
arl)
other fedcral, statcor 10eaHaws or rcgcrlations inclndirtg,btllnot limited to, the Act arId thc
Board'rcgcrlatiolls, 35
ill,
Adm, eode, Subtitles A tlnotlghH.
VI m. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-
COMPLIANCE
Section
/7
33(c)
.
ofthe Act, 415 JLCS 5/33(c)(2006), provides as follows:
In
making its orders and.determinations, the Board shall talce into consideration
all
the facts and
circljIllstaiJ.ces bearing upon the reasonableness ofthe 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'thepeople;
4
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 parties to this Stipulation state the following:
t0v
.
I.
"Tl'l-,~e-fC::!'o"',~n""p"'laI";·,n''''aI,.;,{,ha-l..H.le''g'''e'''s+t-l'''',a>ttt
Human health and the environment were threatened
by any emission of asbestos by the Respondent's violations.
2.
There is social and economic benefit to the Respondent's opelations
~
3.
Operation of the facility was suitable for the area in which it was located
occurred.
4.
'Theparties agree t-llat Compliance with the requirements of the Act, Board
regulations, and the asbestos NESHAP is both technically practicable and economically
reasonable.
5.
Respondent
has subsequently complied with the Act and the Board Regulations.
¥II IV. CONSIDERATION OF SECTION 42(h) FACTORS
Section 42(h) ofthe Act, 415 ILCS 5/42(h)(2006), 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 ofpenalty, including but not limited to the following factors:
1.
the duration and gravity ofthe violation;
5
Electronic Filing - Received, Clerk's Office, September 2, 2008
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 relieftherefrom
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 ofmonetlllY penalty which will serve to deter further
violations by the respondent and to otherwise
aid in enhancing voluntlllY
compliance with this Act by the respondent and other persons similarly
subject to the Act;
5.
the number, proximity in time, and gravity ofpreviously adjudicated
violations
of this Act by the respondent;
.
6.
whether the respondent voluntarily self-disclosed, in accordance with
subsection i
ofthis Section, the non-compliance to the Agency; and .
7.
whether the respondent has agree<;l to undertake a "supplemental
environmental project," which means an
environmentallybl;:neficial
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 to this Stipulation state as follows:
00
1.
Complainant a:Heges that The Respondent failed to properly conduct asbestos
removal operations at the site beginning on or around May
5, 2005. The illinois EPA
reinspected the
fa5)ility on May 11,2005, and determined that the removal and disposal activities
at the site were in compliance with applicable laws and regulations
at that time..
2.
Respondent represents that it was diligent in attempting to come back into its
compliance with the Act, Board regulations and applicable federal regulations, priO! to and
srrosequent
to the Illinois EPA'snotification of its alleged noncompliance once the Ill' is EPA
notified it
of its noncompliance.
. .
//
6
Electronic Filing - Received, Clerk's Office, September 2, 2008
3.
Complainant alleges that Respondent derived a nominal economic benefit by not
using the proper and approved method for asbestos removal; however, the civil penalty amount
exceeds any economic benefit that may have been enjoyed by the Respondent.
4.
Complainant and the Illinois EPA have
has determined, based upon the specific
facts
of this matter, that a penalty of Thirty Four Thousand Dollars ($34,000.00) will serve to
deter further violations and aid in future voluntary compliance with the Act and Board
regulations.
5.
To Complainant'sand the Illinois EPA's knowledge, Respondent has one
previously adjudicated violation
ofthe Act, PCB 1997-135, which related to an alleged improper
notification
of asbestos removal and was resolved by settlement and stipulation.
6.
Self-disclosure is not at issue in this matter.
7.
The settlement ofthis matter does not include a supplemental environmental
project.
'VIH
V. TERMS OF SETTLEMENT
A.
Penalty Payment
1.
The Respondent shall pay a civil penalty in the sum of
Thirty
Four Thousand
Dollars ($34,000.00) within
thirty
(30) days from the date the Board adopts and accepts this
Stipulation. The payment
of the ei.il penalty shall not be eonstrtled as an admission of any faet
Ol allegation but is paid for settlement purposes olIly. The penalty descIibed
in
this Stipulation
sllall be paid by certified check or money Older
pay
able to the Illinois EPA; designated to the
illinois
Emhonmental Protection TItlst Fwld and sttbmitted to.
7
Electronic Filing - Received, Clerk's Office, September 2, 2008
Illinois Enviroillnental
PlOtee~ion
Ageney
Fiseal SCi viees Seetion
1
021 Nor tit Gr and A vwtae East
P.O. Box 19276
Springfield, IL 62794-9276
The name and mnnber of the ease and Responderrl's Federal Employer IdentifieatioII Nmnoer
(FEn~,
shall appear on the cheek. A copy ofthe certified cheek or money order arrd arlY
tr
ansllrittallctter sllall be sent tei.
J. Homarl
Assistant Attomey General
EnviroIllllental
Bwean
500 Smith Seeond Sheet
Springfield, Illinois 62702
Cltristopher PressIIall
Assistant COmMel
llIinois Enviroillnental Protection Agency
1021 Nortit Grand Avenne East
.P.O.Box 19276
.'Springfield,Illinois 62794-9276
B.
Stipulated Penalties, Interest and Default
1.
.
If
the Respondentfails to make anv payment reguired by this Stipulation on or
before the date upon which the payment is due. the Respondent shall be
in
default and the
remaining unpaid balance
ofthe penalty. plus any accrued interest. shall be due and owing
immediately. In the
eventof default. the Complainant shall be entitled to reasonable costs of
collection, including reasonable attorney'sfees.
2.
. Pursuant to Section 42(g) of the Act interest shall accrue on any penalty amount
owed
bv the Respondent not paid within the time prescribed herein. Interest on unpaid penalties
shall begin to accrue from the date such are due and continue to accrue to the date full pavrnent
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Electronic Filing - Received, Clerk's Office, September 2, 2008
is received. Where partial payment is made on any penalty amount that is due. such partial
pavment shall be first applied to any interest on unpaid penalties then owing.
t!
C.
Payment Procedures
All payments required bv this Stipulation shall be made
by certified check or monev
order payable to the Illinois
EPA for deposit into the Environmental Protection Tmst Flmd
("EPTF''). Payments shall be sent by first class mail and delivered to:
Illinois Environmental Protection Agency
Fiscal Services
1021 North Grand Avenue East
P.O.
Box 19276
Springfield.IL
62794"9276
The name. case number and the Respondent's federal tax identification number shall appear on
the
face'of the certified check or money order. A copy ofthe certified check or money order and
anv transmittal letter shall
be sent to:
Environmental
Bureau.
Illinois Attorney General's Office
500
South Second Street
Springfield. Illinois 62706
D.
Future Compliance
This Stipulation
in no way affects the responsibilities of the Respondent to comply with
any other federal. state or local laws or regulations. including hut not limited to the Act and the
Board
Regulations.
2.
Prowant to SeetiOll
42(g) of
the
Act, 415 ILCS
5f42(g)
(2004),
illtwest
sha-ll
aect tIC Oil any' paylltCnt aot
paid
within the time period prescribed abo yo at the tuaxinlwn late
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Electronic Filing - Received, Clerk's Office, September 2, 2008
aHol"iable tlIldel Seetion 1003(<0 oHhe Illinois Lleomc Tax Aet, 35 ILCS 5/1003 (2004). Merest
on any tntpaid payment shall begin to aeel ue nom the date the payment is dtte iIild eontinue to
aeelue until the date payment iSleeeived. Vlhenpartial payment(s) me made, Sllehpmtial
payment shall be ftIst applied to any interest on unpaid payment then dtte <Ind owing. All intClest
on payment owed shall be paid by eertified
ehe~,
money ordel
01
eleetronie fWlds transfel,
payable
to the Illinois EPA, designated to the llIinois E1l9ir0111nental Ploteetion Trust FWld and
delivered to the addless Md in the mmmel deselibed above.
3. For pllIposes ofpayment mId eolleetion, Respondent may be cWltacted tlnollg1r
COllIISel at tlle followirrg address.
JellIlifel T. Nijman
Winston
&
Sttavm, LLP
Chieago, IL 60601-9703
4.ln the event of default of this Seetion VIllA, the Complainant shall be entitled to all
available
relieffOl paynrent of the eivilpenalty ine1Udirlg, but notlinri:ted to, leasonable costs of
collection aI1d reasonable attomey's fees.
B.
Cease
ahdHesist.
The RcsPcnrdentShall eease and desist nom future violations ofthe Act and Bomd
Regulatio1l5 that Viele tllC subject matter oftlle COIllJ'llaint asoutluled in Bectiwl
m.c
("Allegati011s ofNon-Compliance") of this Stipt4ation.
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Electronic Filing - Received, Clerk's Office, September 2, 2008
€
E. Release from Liability
In
consideration oftbe Respondent'spayment oftbe $34,000.00 penalty and connnitmcnt
to
Ccase and; Desist as contained in Section VllI.B and any specified costs and.accrued interest.
completion
of all activities required hereunder. and upon the Polltttion Control Board's
acceptance and approval
of the teIlllS ofthis Stipulation and PIOpOSal fOI Settlement, the
Complainant releases, waives and discharges the Respondent from any further liability or
penalties for the violations
ofthe Act and Board Regulations that were the subject matter ofthe
Complaint herein. The release set forth above does not extend to any matters other than those
expre
.
Ie
III
Complainant's Complaint filed on May 23,2005, OJ which could have
becntaised in the Complaint filed befoIe the Illinois Pollution Control Board. The Complainant
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 co=on 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
of action, administrative or judicial, civil or criminal, past or future, in
law or
in equity, which the State ofIllinois or the Illinois EPA may have against any person, as
deJilled by Section 3.315 ofthe Act, 415ILCS 5/3.315, or entity other than the Respondent.
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Electronic Filing - Received, Clerk's Office, September 2, 2008
B.
EnfOlcement ofBoald Oldel
F.
Enforcement and Modification of Stipulation
-r.Upon the entry ofthe Board's Order approving and accepting this Stipulation, that
Order is a binding and enforceable order
ofthe Board and may be enforced as such through any
and all available means.
2.
Respondelf~
agrees that notice of any snbseqtlent proceeding to enforce the Boa:rd
Grder appro ving and aceeptllig this
S~iptrlation
a:rrd Proposal for SettlemCiit
may
be made by
mail and "aives
any
reqtri:rernerrt ofseIViee of process.
3.
TIre pa:rties agree that, if flre Boa:rd does not appro ve a:rrd accept this Stiptrlation
a:rrd Proposal for Settlemerrt, then ndflrel pa:rty is aotllid by the terms herein.
G.
~xecution
ofStipulation
The wldersilIDedrepresentatives for each party to this Stipulation certifr that they are
fully authorized bv the party
whom they represent to enter into the terms and conditions of this
Stipulation and to legally bind them to it.
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Electronic Filing - Received, Clerk's Office, September 2, 2008
, ,
WHEREFORE, Complainant and Respondent the parties to this Stipulation request that
the
Board adopt and accept the foregoing Stipulation and Proposal for Settlement as written.
PEOPLE OF THE STATE OF ILLINOIS, . FOR THE ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
BY:
THOMAS DAVIS,
Chief
Environmental Bureau
Assistant Attorney General
DATE:
_
CHAMPION ENVIRONMENTAL
SERVICES, INC., a Wisconsin
.corporation,
BY:
Name:
_
Title:_~------_
DOUGLAS P. SCOTT, Director
Illinois Environmental Protection Agency
ROBERT
A. MESSINA
ChiefLegal Counsel
DATE:
_
DATE:
_
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Electronic Filing - Received, Clerk's Office, September 2, 2008
