Certificate ofService via United States Postal certified mail upon:
ZEMEHERET BEREKET-ABAssistant Attorney GeneralEnvironmental Bureau
Chicago, Illinois 60601

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~

PEOPLE OF THE STATE OF ILLINOIS,

)

LISA MADIGAN, Attorney General

)

ICE

of the State of Illinois,

)

 SEP 13 2004

Complainant,

)

bATEOFILLINOIS

r-OIIUtIO~

Control Board

vs.

)

 PCB No.

(Enforcement

 Air)

RANDY

 OLDENBERGER,

 d/b/a

ENVIRONMENTAL HEALTH and SAFETY,

Respondent.

NOTICE OF FILING

TO:

 Bryan G.

 Selander

Schlueter Ecklund

4023 Charles Street

Rockford,

 Illinois 61108

PLEASE TAKE NOTICE that

 I have today filed with the Office

of the Clerk of the Illinois Pollution Control Board a complaint,

Notice of Filing, and a Certificate of Service on behalf of the

People of the State of Illinois,

 a copy of which

 is attached and

herewith served upon you.

•

 Section 103.204(f)

 of the Pollution Control Board Procedural

Rules,

35

 Ill. Adm.

 Code 103.204(f)provides:

 “Failureto

 file an,

answer to this complaint within 60 days may have severe

consequences.

 Failure to answer will mean that all allegations

 in the complaint will be taken as

 if admitted for purposes of

this proceeding

 If you have any questions about this procedure,

you should contact the hearing officer assigned to this

proceeding,

 the Clerk’s Office or an attorney.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General

State of Illinois

BY

__________

ZEMEHERET BEREKET-AB

Assistant Attorney Gener~.l

Environmental ~ureau

•

 188 W. Randolph St.,

 20th Fir.

•

Chicago,

 IL 60601

(312)

 814-3816

DATE:

•

September

13,

2004

G:\Environrnefltal

Enforcenient\Z B~REKET-AB\oldenberger

notice of

filing

0904.wpd

•

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

SEP

.13

2004

STATE OF ILLINOIS

PEOPLE

THE

STATE

ILLINOIS,

)

POIIutionControJBoard

LISA

MADIGAN,

Attorney

General

the State of Illinois,

)

complainant,

-VS-

)

 PCB No.

(Enforcement—Air)

RANDY OLDENBERGER, d/b/a

ENVIRONMENTAL HEALTH & SAFETY,

Respondent.

COMPLAINT

NOW COMES Complainant,

 PEOPLE OF THE STATE OF ILLINOIS, by

LISA MADIGAN, Attbrney General of the State of Illinois, and

complains

 of Respondent,

 RANDY

OLDENBERGER, d/b/a ENVIRONMENTAL

HEALTH & SAFETY,

 as follows:

COUNT

I

AIR

 POLLIJ’TION

1.

•

 This Complaint

 is brought by LISA MADIGAN, Attorney

General

 of the State of Ili±nois,

 on her own motion and at the

request of

 the. Illinois Environmental Protection Agency

(“Illinois EPA”)

 against

RANDY

OLDENBERGER,

 doing •business as

(“d/b/a”)

 ENVIRONMENTAL HEALTH & SAFETY,

 pursuant to the terms

and provisions of Section 31 of the Illinois Environmental

Protection

 (“Act”)

 415 ILCS 5/31

 (2002)

.•

—1—

2.

 The Illinois EPA is an administrative agency

established in the executive branch of the State government by

Section 4 of the Act,

 415 ILCS 5/4

 (2002), and charged,

 inter

alia,

with the duty of enforcing the Act.

3.

 Randy Oldenberger d/b/a Environmental Health & Safety

(“Respondent”)

 is not registered with the Illinois Secretary of

State.

•

•

4.

 Respondent

 is an asbestos removal~contractor

that conducts asbestos consulting services,

 including building

inspections,

 asbestos abatement project management,

 and asbestos

removal and disposal activities.

•

5.

 Randy Oldenberger is licensed by the Illinois

Department of Public Health

 (“IDPH”).

6.

 At all times relevant to this Complaint,

 Respondent was

located at 1304 Derby Lane,

 Rockford, Winnebago County,

 Illinois

61107.

•

7.

 Respondent,

 as the asbestosremoval

 contractor,

contracted with the owner of the former LincolnPa~rk School.

located at 4103 West State Street,

 Rockford, Winnebago County,

Illinois

 (“Facility”)

 to remove and dispose of regulated’

asbestos-containing material

 (“RACM”)

 from the’ boiler room

located within the Facility.

 Respondent was the operator of the

renovation activity at the Facility.’

•

‘

8.

 On December 9,

 2002,

 the Illinois EPA received from

Respondent a Notification of Demolition and Renovation

•(“Notification”),

 informing the Illinois EPA of scheduled

• asbestos removal activities to be conducted within the Facility.

The asbestos removal was scheduled to begin on January 2,

 2003,

and be completed by January 24,

 2003.

•

‘

9,.

 The Notification failed to state an estimate

of the ‘approximate amount of asbestos that will not be removed

during demolition of the facility.

•

10.

 On January 7,

 2003,

 Illinois EPA inspected the

Facility.

•

“

•

• 11.

 On January

7,

 2003,

 Respondent informed the Illinois

EPA that asbestos removal activities, originally scheduled to

commence within the Facility on January 2,

 3003,

 commenced’on

January 6,

 2003,

 two working days after the scheduled starting

date for asbestos removal activity stated in the Notification.

• 12.

 On January

7,

 2003,

 and on a date(s)

 better known to

Respondent~. Respondent’s employees removed and dropped to the

‘boiler room floor dry friable regulated asbestos-containing

• boiler insulation located on one boiler and bbiler pipes’ causing

the visible emission of regulated asbestos-containing boiler

insulation. Respondent’s employees conducted asbestos removal

-3-

activities,within the boiler area without’ utilizing

 a containment’

-•

area with negative air, decontamination unit,

 bagout area,

or

“water spray to control asbestos emissions.

•

‘

13.

 On January

7,

 2003,

 the Illinois EPA inspected

‘•

•

one’ of several bags located within the boiler room area and

utilized by Respondent’s employee to contain boiler insulation.

•

 At least one bag contained dry friable regulated asbestos-

containing bo~lerinsulation that could easily be crushed and

•

 crumbled by hand pressure.

 Neither water nor condensation were

•

visible within

 at’ least one bag utilized to contain regulated

•

 asbestos-containing boiler insulation.

‘

•

‘

14.

 On January 7,

 2003,

 the Illinois EPA collected three

•

 samples of dry friable RACM from the Facility for analytical

testing

 Two samples of dry friable RACM were collected from

•

 inside the boiler room work area,

 and one sample was collected

from the area adjacent to the entry doorto the wo~karea.

,‘

•~

15

 On January 24,

 2003,

 the Illinois EPA received from

EnviroHealth Technologies, Inc

 test data documenting that one

of the samples contained concentrations of chrysotile asbestos

from 10

 to 20

 and all three samples contained concentrations of

amosite asbestos from 10

 to 30

16

 Section 9(a)

 of the Act,

 415 ILCS 5/9(a)

 (2002),

provides as follows

-4-

No person shall:

1.

 Cause or threaten’or allow’the discharge, or emission

•

‘

 of any àontaminant into the environment

 in any State

so a~to cause or tend to cause air pollution in

•

 Illinois,

 either alone or in combination with

•

‘

 contaminants from other sources, or so as to violate

regulations or standards adopted by the Board under

this Act;

•

•

17.

‘,

 Section 201.141 of the Illinois Pollution Control Board

•(“Board”) Air Pollution Regulations,

 35 Ill. Adm. ‘Code 20l.l41~.

titled,

 Prohibition ‘of Air Pollution, provides as follows:

No person shall cause or threaten or allow the discharge

or emission of any contaminant

 into’ the environment in

any Stateso as, either alone or in’combination with

contaminants from other’ sources,

 to cause or tend to

cause air pollution in Illinois,

 or so as to violate the

provisions of this Chapter

18.

 Section 3.315 of the Act, 415 ILCS 5/3.315

 (2002),

defines

a

person as follows:

“Person” is any individual, partnership, co-partnership,

•

 firm,’ company,

 limited liability company,

 corporation,

association,

 joint stock company,

 trust,

 estate,

•

 political subdivision,’ state agendy,

 or any other legal

•

 entity,

 or their legal,representative,

 agent or assigns.

19.

 Respondent

 iC a “person” as that term is defined by

Section 3 315 of the Act, 415 ILCS 5/3 315

 (2002)

20

 Section

 3 115 of the Act,

 415 ILCS 5/3 115

 (2002)

defines air pollutio~ias:

“Air pollution”

 is the presence in the atmosphere of one

or more ‘Contaminants in sufficient quantities and of such

characteristics and duration as to be injurious to human,

•

 plant, or animal

 life,

 to health, or to prope±’ty,orto’

unreasonably interfere with the enjoyment of life or

 property.

“

‘

-5-

•

21.

 Sectjon 3.165 of the Act,’ 415 ILCS5/3.l65

 (2002),,

•

 defines contaminant as follows:

•“Contaminant” is any solid,

 liquid, ,or gaseous matter,

•

‘

 any odor, or any form of energy,

 from whatever source.

•

22.

•

Asbestos

 is a contaminant as that term is, defined by

Section 3.165 of the Act,

 415 ILCS 5/3.165

 (2002)

23.

 As operator of an asbestos removal, activity,

•Respondent caused, threatened or allowed the discharge or

emission of asbestos into the environment so as to cause or tend

to ‘cause air pollution in,that dry friable RACM located on one

•boiler andboiler pipes within the Facility’ was removed without’’

•

 utilizing wet methods or measures to control asbestos emissions.

•

 WHEREFORE,

 Complainant, PEOPLE OF THE STATE OF ILLINOIS,

•

‘

 respectfully requests that,the Board enter an order

 ag’ainst

•

 Respondent and in favor of Complainant:

‘

1

 Authorizing a hearing in this matter at which time

•

 Respondent will be required to answer the allegations herein;

‘2.

 Finding that Respondent

 ha’s violated Section 9(a)

 of the

Act and 35 Ill

Adm

 Code Section 201

 141,

3

 Ordering Respondent to cease and desist from any further

violations of Sections 9(a)

 of the Act, and 35 Ill

Adm

 Code

•

..,,

 Section 201.141;

•

‘

•

‘

4

 Assessing a civil penalty against Respondent in the

amount of Fifty Thousand Dollars

 ($50,000

00)

 for each violation

of the Act, and an additional civil penalty of Ten Thousand

-6-

‘

•

‘

‘Dollars

 ($10,000.00) per day for~each day during which the

violation of the Act andBoard regulations’ continued;

•

‘

5.

 Requiring Respondent to pay all óosts of this proceeding

pursuant to Section 42(f)

 of the Act, including expert witnesses,

consultant,

 and attorney fees; and

6.

 Granting such other relief as this Board deems

•

appropriate

and

just.

•

COUNT

II

FAILURE TO PROVIDE A COMPLETE NESHAP FOR ASBESTOS NOTIFICATION

1-15.

 Complainant realleges and incorporate’s by reference

herein, paragraphs

 1 through 15 of Count

 I as paragraphs

1

through 15 of this Count II.

•

16.

 Section 9.1(d) (1)

 of the Act,

 415 ILCS 5/9.1(d) (1)

(‘2002)

 states as follows:

.(d)

 No, person’, shall:

1.

‘

Violate any provisions of Sections 111,

 112,

 165,

or 173 of ‘the Clean Air Act,

 as now or hereafter

amended, or federal regulations adopted pursuant

thereto.

17.

 Pursuant to Section 112(b) (1)

 of the Clean Air Act

(“CAA”),

 42 U.S.C.

 7412(b) (1),

 the Administrator of the United

Stat’es, Environmental Protection Agency’ ‘(“TJSEPA”)

 lists asbestos

as a hazardous air pollutant.

‘

~‘

‘

18.

 Section 112(d)

 of the CAA,

 42 U.S.C.

 7412(d), ‘titled

Emission Standards, provides in pertinent part as follows:

-7-

1.

 The Administrator shall promulgate regulations

establishing emission standards for each’category or

subcategoryof major

 s,ources and area sources of

hazardous air pollutants listed, for regulation

19.’ Section 112(h)

 of the CAA,

 42 U.S.C.

 7412(h),

 titled,

Work Practice Standards and Other Recruirements, provides in

“I

pertinent part as follows:

1.

 For purposes of

 this’ section,

if

i,t

 i’s not feasible

in the’ judgment of the Administrator to prescrIbe or

enforce an emission standard for control

 of, a

hazardous air pollutant or pollutants,

the

Administrator may,

 in lieu thereof, promulgate a

design,

 equipment, work practice, or operational

standard, or combination thereof, which in the

Administrator’s judgment is consistent with the

provisions of subsection

(d)

or

(f)

 of this

section

‘

20

 Pursuant to Section 112 of the CAP~, the USEPA has

adopted NESHAP’. The Administrator determined that work practice

standards rather than ‘emission standards were apptopria~ein the

regulation of asbestos.

‘

2l~ The federal regulations set forth within the NESHAP for

,‘

‘

asbestos are enforceable through Section 9.1(d) (1)

 of ~.heAct,

415 ILCS 5/9.1(d) (1)

 (2002).

‘

•

“

22

 Section 61 141 set forth within the NESHAP for asbestos,

40 CFR 61 141

 (January 17, 2003),

 provides in pertinent part as

follows

•

 All terms that are used in’ this subpart and ‘are ‘not

‘

•

 defined below are given the same meaning as. in ‘the Act’

and’in subpart

 of this part.

•

‘•

‘

-8-

Asbestos

 means the asbestiform varieties of serpentinite

(chrysotile), riebeckite

 (croc’idolite), cummingtonite-

grunerite, anthophyllite, and actinolite-tremolite.

Category I nonfriable asbestos-containing material

 (ACM)

means asbestos-containing packings,

 gaskets, resilient

floor covering,

 and asphalt roofing products containing

more than

 .1 percent asbestos as determined using the

method specified in appendix E,

 subpart

E,

 40 CFR part

763,, Section 1, Polarized Light Microscopy.

Category II’nonfriable

 ACM means any material, excluding

Category

 I nonfriable ACM, containing more than 1 percent

 asbestos as determined using the methods specified in

appendixE,

 subpart

E,

 40 CFR part 763,

 section 1,

Polarized Light’ Microscopy that, when dry,

 cannot be

crumbled, pulverized,

 or reduced to powder by hand

pressure.

‘

Facility

 means any institutional, commercial, public,

industrial,

 or residential structure,

 installation,

Or

building’ (including any structure,

 installation; or

building containing condominiums or individual dwelling

units operated asa residential cooperative, but

excluding residential buildings having four’or fewer

dwelling units); any ship; and any active or inactive

wastedisposal site. Forpurposes of this definition,

any

building,

 structure,

 or installation that contains a loft

used as a d~elling‘is not considered a residential

structure’,

 installation,

 or building. Any structure,

installation or building that was previously subject to

this subpart is not excluded,, regardless of its current

use or function.

‘

Friable asbestoà material

 means any material con~taining

more than

 1 percent asbestos as determined using the

method specified, in appendix E,

 subpart

E,

 40 CFR 763

 section

1,

 Polarized Light Microscopy,

 that, when dry,

can be crumbled, pulverized,

 or reduced to powder by hand

pressure.

 If, the asbestos content

 is less than 10 percent

as determined by a method Other ?han point counting by

polarized light microscopy

 (PLM), verify the asbestos

content by point counting using PLM.

Owner o~operator of a demolition or renovation activity

means any person who owns,

 leases,

 operates, controls,

or

supervises the facility being demolished or renovated or

any person who, owns,

 leases,

 operates,

 controls,

or

-9-

supervises the facility being demolished ~r renovated or,

any’ person who’ owns,

 leases,

 operates,

 controls, or

supervises the demolition or renovation operation,

or

,both.

‘

Demolition

 means the wrecking or taking out of any load-”

supporting structural, member

 of’ a facility together with

any related handling operations or the intentional

burning of any facility.

‘

RenOvàLion

 means altering a facility or one or more

•

‘

 facility com~onen.tsin .any way,

 including the stripping

or, removal of RACM from a facility compOnent.. Operations

•

‘

 in’ which load-supporting structural members are wrecked

•

 or taken out are demolitions.

‘

•

 Regulated asbestos-containing material

 (RACM)

 means

(a)

•

 ‘Friable asbestos material,

(b)

 Category I nonfriable ACM

•

‘

 that has become friable,

 (c) Category

 I nonfriable ACM

•

‘

•

 that will be or’has been subjected to Canding,

 grinding,,

•

 cutting or abrading, or

(d)

 Category II .nonfriable ACM’

•that 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,

•

‘

 demolition or renovation operations regulated by this

subpart.

‘

•

 Remove

 means to take ,out RACM or facility components

 that,

contain or,are covered with RACM from any facility.

‘

•

23.

 The structure within which Respondent condncted

asbestos removal activities

 is a “facility”

 as defined in 40 CFR

61 141

24

 The removal of asbestos from the facility constitutes

a

renovation as defined in 40 CFR 61.141.

‘

25.

 As the contractor who operated,

 controlled,

or

•supervised asbestos removal

 a’btivities, Respondent waC the

•

operator of

 a renovation activity as that term is defined in 40

CFR 61.141.

‘

-10-

26.

 Section’ 61.145(a)

 of the NESHAP,

 40 CFR 61.145 (a)

(January 17,

 2003), titled,

 Standard for Demolition and

Renovation,

 pr’ovides in pertinent part as follows:

(a)

 Applicability.

 To determine which requirements of

paragraphs

 (a),

 (b), and

 (c) of this section apply to

the’ owner or operator’of

 a demolition or renovation

activity and prior to the commencement of the

demolition or renovation,

 thoroughly inspect the

affected facility or part of the facility where, the

demolition or renovation operation will occur for the

presence of asbestos, including Category

 I and

Category II nonfriable ACM. The requirements of

paragraphs

 (b)’ and

(c)

 of this section apply to each

owner or operator of a demolition or renovation

activity, ‘including the removal of RP~CMas follows:

(1), In a facility being demolished,

 all the

 requirements of paragraphs

(b)

and

(c)

 of this

section apply,

 except as provided in paragraph

(a) (3)

 of this section,

 if the combined amount of

RACMi5

(i) At least 80 linear meters

 (260 linear feet)’

on’pip’es or at least

 15 square meters

 (160

square ‘feet)

 on other facility components, or

(ii) At least

 1 cubic ter

 (35 cubic feet)

off

facility components ‘where the length or area

could not be measured previously.

27.

 The Notification stated the Facility was

 to be

demolished,

 that 1000 linear feet of R~CMon, pipes was to be

removed,

 630 square feet of RACM was to be removed from the

boilers, andl2,500 square feet of Category I nonfriable

‘

asbestos-containing floor tile ‘was to be removed.

‘

28.

 Asbestos removal activities performed by Respondent

within the Facility were”subject to the requirements’of 40 CFR

61.145(b)

 (c),

 and’ 61.150.

‘

•

29.

 Section 61.145(b) (4) (vi),

 set forth.wlthin ‘the NESHAP

for asbestos, CFR 61~145(b)(4) (vi)

 (January

17,

 2003), ‘titled

‘Standard for Demolition and Renovation: Notification,

‘Requirements, provides in pertinent part:

•

‘

 (b) Each owner or operator of a demolition or renovation

•

‘

 activity to which this section applies shall:

•

‘

(4)

 Include the following

 in’ the notice:

(vi)

 Estimate of the approximate amount of

RACM to be removed from the facility in

•

‘

 terms of length of pipe in linear meters

(linear feet),

 surface area in square

meters

 (square

 feet), on other facility

components, or volume in cubic meters

(cubic feet)

 if off the facility

components. Also, estimate .the

approximate amount of Category I and

Category II nonfriable ACM in the,

affected part

 of’ the facility that will

•

‘

 not be removed before demolition.

30. In the Notification received by the Illinois EPA from.

Respondent on December 6,

 2002, ‘Respondent failed to set forth an

estimate

 of’ the approximate amount of Category

 I and Cate~oryII

norifriable ACM in the affected area of the Facility that will not

be removed.before demolition of the Facility.

‘

•

31.

 By his failure to submit a complete notification in

accordance with the requirements of 40 C.F.R.

 6,1.145(b) (4) (vi),

Respondent violated Section 9.1(d)

 (1), of ,the Act, 415 ILCS

•

5/9.1(d)

(1)

(2002),

 and. 40 CFR 61.145(b) (4) (vi).

‘

‘‘

‘

-12-

WHEREFORE,

 Complainant,

 PEOPLE OF THE STATE OF ILLINOIS,

‘respectfully requests that the Board enter an order against

 the,

Respondent and in favor of the Complainant:

1.

 Authorizing

 .a hearing in this matter at which time

Respondent will be required to answer the allegations herein;,

2.

 Finding that Respondent has violated Section 9.1(d) (1)

of

the Act and’40 CFR 61.145(b) (4) (vi);

‘

3.

 Ordering’ Respondent to cease and desist from any further

violations of Section 9.1(d) (1)

 of the Act, and 40 CFR 61.145(b)

(4) (vi)

;

‘

4.

 Assessing against Respondent a civil penalty of Fifty

Thousand Dollars

 ($50,000.00)

 for each and every violation of the

•Act, with an additional penalty of Ten Thousand Dollars’

($10,000.00) per day for each day of violation;

‘

•

 Requiring Respondent ‘to, pay all costs of this proceeding

pursuant to Section 42(f)

 of the Act, including expert witness,

consultant,

 and attorney fees; and

5.

 Granting such other relief as this Board deems

appropriate and just.

‘

‘~

‘

.‘

“

‘

COUNT III

FAILURE TO TIMELY SUBMIT A NESHAP FOR ASBESTOS NOTIFICATION

1-30.

 Complainant realleges and incorporates by reference

herein, paragraphs

 1 through 30 of Count

 II as paragraphs

1

• through’ 30,of this Count III.

‘

‘,

‘

-13-

31.

 Section 61.145(b) (1)

ahd

 (3) (iv) set forth within the

NESHAP for asbestos,

 40’ CFR 61.145(b) (1)

and

 (3) (iv)’ (January 17,

2003,),

 titled,’ Standard for Demolition and Renovation: Notifi-

cation Requirements, provides in pertinent part as follows:

(b) ‘Each owner or operator of a demolition or

renovation activity to which this section applies

‘shall:

(1)

 Provide the Administrator with written notice of

intention to demolish or renovate. Delivery of the

notice by U.S. Postal Service, commercial delivery

service, or hand delivery is acceptable.

(3)

 Postmark or deliver the notice as follows:

(iv)

 For asbestos stripping or removai,work in a

demolition or renovation operation,

 described

in paragraphs

 (a) (1)

and

(4)

 (except

(a)

(4)

(iii)

and(a)

(4)

(iv))

this

section,

and for a demolition described in paragraph

(a) (2)

 of this section,

 that will begin on a

date other than the one contained in the

original notice,

 notice. of the new start date

must be provided to the Administrator as

follows:

(A) When the asbestos stripping or removal

operation or demolition’ operation covered.

by this paragraph will begin after

 thern,

date contained in the notice,

(1)

 Notify the’ Administrator’of the new

start date by telephone as soon

 as’

possible before the original start

date,

and

(2)

 Provide the Administrator with a

written notice ,of the ne~start date

as soon as possible before, andno.

later than,, the original start date.

Delivery of the updated notIce by the

U.S. Postal Service,

 commercial,

‘

delivery service,

 or hand d~liveryis

acceptable.

‘

-14-

32

 Respondent failed to submit to the Illinois EPA a

notification revising the scheduled starting date for asbestos

•

removal ‘activities prior ‘to the expiration of the original

scheduled’ starting ‘date

 of, January

2,

 2003,’ as required by 40 CFR

61

 145(b) (3) (iv)

33

 Respondent,

 by his failure to notify the Illinois EPA

of the new starting date for asbestos removal activity, violated

Section 9.1(d)

 (‘1)

 of the Act,

 415’ ILCS 5/9.1(d)

(~)

 (2002),

 and 40

CFR 61.145(b) (1) and

 (3) (iv)

 (January 17, 2003).

‘

•

 WHEREFORE,

 Complainant, PEOPLE OF THE STATE OF,ILLINOIS,

I’

‘

respec~ful.lyrequests that the Board enter an order against the

‘

Respondent and in’ favor of the Complainant:

•

‘

1.

 Authorizing a hearing in this matter at which time

‘

Respondent will be required to answer the allegations herein,

2.

 Findingthat Respondent has violated Section 9.1(d) (1)

of

the Act and 40 CFR 61 145 and

 (3) (iv),

3

 Ordering Respondent to cease and desist from any further

—--i-e~aas—of~Se~e-t—i-on—9-~-1-(d-)-(--1--)

 —of_-the_Ac~t—and-40_-CPR__

—

61

 145(b)

 (3) (iv),

4

 Assessing against Respondent a civil penalty of Fifty

Thousand Dollars

 ($50,000

00)

 for each and every violation of th~

Act, with an additional

 civil penalty of Ten Thousand Dollars

($10,000

 00) per day for each day of violation,

-15-

‘5.

 Requiring Respondent, to pay all costs of this proceeding,

pursuant to Section 42(f)

‘of

 the Act,

 including expert witness,

consultant,

 and attorney fees;

and

6’.

 Granting such other relief as this Board deems

.ap~ropriateand, just.

‘

COUNT

IV

FAILURE TO ADEQUATELY WET ALL RACM

‘

‘‘

‘

•

‘

 PRIOR TO STRIPPING

 FROM STRUCTURES

‘

‘‘1-28.

 Complainant realleges and incorporates by reference,

‘herein,, paragraphs

 1 through 28 of :Count, II as paragraphs

1

through’ 28 of’this Count

IV.

‘

“

29

 Section 61 145(c) (3)

 set forth within the NESHAP for

asbestos,

 40 CFR 61.145(c) (3)

 (January 17,

 2003),

 titled,

•,

Standard for Demolition and Renovation:

 Procedures for Asbestos

Emission Control, provides in pertinent part as follows:

‘

(c) Each owner or operator of a demolition or renovation

•“

‘

 activity

 to’ whom this paragraph applies, according to

(d) paragraph

(a)

 of this section,

 shall comply with the

‘

 following procedures:

‘

•

___-—

~ ~

~~

 rt~~

—

while

it

remains in place in the facility,

adequately wet the RACM during the stripping

operation.

‘

30.

 Respondent failed to adequately wet all R~CMduring

‘

asbestos removal activities within the Facility

-16-

31.

 I’n failing to adequately wet the RACM du,ring asbestos

removal activities,

 Respondent violated Section

9

 1(d) (1)

 of the

Act,

 41’S ILCS 5/9.1(d) (1)

 (2002), and 40 CFR 61.145(c) (3).

WHEREFORE,

Complainant.,’

PEOPLE

THE

STATE

ILLINOIS,

•

‘

‘respectfully

requests’

that

the

 Board enter an order against the

.‘

Respondent

,and

favOr

of.

the

 Complainant:

Authorizing

hearing

this

matter

 which time

•

Respondent

will’

required

answer

 the allegations herein;

F’inding

that

Respondent

has

violated

Section

9.1(d)

(1)

the Act and 40 CFR 61.145(c) (3);

•

‘

3.

‘

 ,Ordering’Respondent to cease’ and desist from any further

•

violations’of

 Section 9.1(d) (1)

 of the Act and 40 CFR

145 (c)

(3)

Assessing

against

Respondent

 a civil penalty of Fifty

Thousand

Dollars

($50,000.00)

for

each

and

every

 violatiOn,of the

Act,

with

additional

civil

penalty

Ten

Thousand

Dollars

• ($10,000.00)

per

day

for

each

day

violation;

•

Requiring

Respondent

pay

all

costs

this

proceeding

pursuant

Section

42(f)

the

Act,

including

expert

witness,

consultant, and attorr~eyfees; and

•

‘

6

 Granting such other relief as this Board deems

appropriate and just.,

‘

-17-

‘

COUNT V

FAILURE TO ADEQUATELY WET ALL RACM

UNTIL COLLECTION

1-28.

 Complainant realleges and incorporates by reference

herein, paragraphs

 1 through 28 of Count II as paragraphs

1

through ‘28 of this Count V.

29.

 Section 61.145(c) (6) (i)

 set:forth

within

the

NESHAP.for

asbestos,

 40 CFR 61.145

 (c) (6)

(i)

 (January 17,

 2003)

titled,

Standard for Demolition and Renovation:

 Procedures for Asbestos

Emission Control, provides

in.

 pertinent .par,t as follows:

For all RACM,

 including material that has been removed, or

stripped:

(i) Adequately wet the material and ensure that it

•

 remains wet until collected and contained or treated

preparation

for

disposal

accordance

with

•

‘

 §61.150;

30.

 Respondent failed to adequately wet and maintain wet all

RACM and regulated asbestos-containing waste material until

‘

collected and contained in preparation for disposal at’a site

permitted to accept such waste.

‘

31.

 By. failing to ensure that the

R~CMand

regulated

‘

asbestos-containing,waste material remained wet until collected

and contained,

 Respondent violated Section 9.1(d) (1)

 of the Act,

‘

415 ILCS 5/9.1(d)

(i)

 (2002),

 and 40 CFR 61.145(c) (6) (i)

‘

-18-

•

‘

“

‘

 WHEREFORE,

 Complainant,

 PEOPLE OF THE’STATE OF ILLINOIS,

respectfully requests that the Board enter an order against the

Respondent and in favor of the Complainant:

‘

1.

 Authorizing ahearingin

 this matter at which time

Respondent will be required to answer the allegations herein;

2.

 Finding that Respondent has violated Section 9.1(d) (1)

of

the/Act

and

CFR

145(c)

(6)

(a.),

Ordering

Responde’nt

cease

and

desist

from

any

further

violations

Section

9.l(d)(1)

the

Act

and

CFR

61.145(c)

(6) (i);

‘

•

‘

“

•

 Assessing against Respondent a civil penalty of Fifty

ThousandDollars

 ($50,000.00)

 for each and every violation of the

Act,

with

additional

civil

penalty

Ten

Thousand

Dollars

($10,000

00)

per

day

for

each

day

violation,

•

Requiring

Respondent

pay

all

costs

this

proceeding

pursuant to Section 42(f)of the

Act,

 including expert witness,’

consultant,

 and,attorney fees;’ and

6

 Granting such other relief as this Board deems

appropriate and just

COUNT VI

FAILURE

 TO’ ADEQUATELY WET AND KEEP WET

•

‘

ASBESTOS-CONTAINING

 WASTE MP~TERIAL

‘

1-28

Complainant

realleges

and

incorporates

reference

herein, paragi~aphs1through’28

 of’ COunt

II

 as paragraphs

1

‘

•

‘

through

this

Count

VI.

‘

29.

Section

61.150

(a)

(1)

set

 forth within the NESHAP for

asbestos,

C,FR

61.1SO(a)

(1)

(October

10’,

2003),

titled,

Standard fo’r Waste Disposal for Manufacturing, Fabricating,

Demolition,

 Renovation,

 and Spraying Operations, provides in

‘pertinent

part

follows:

‘Each owner or operator of any source covered under the

provisions of §~6l.144, 61.145, .61.146,

 and .61.14,7 shall

comply with, the following provisions:

(a) Discharge no visible emissions to the, outside air

during ‘the collection,

 processing

 (including

•

‘

 .incineration)

 packaging,

 or transporting of any

asbestos-containing waste material generated by the

•

 ‘source,

 ‘or use one of the emission control and waste

treatment methods specified in paragraphs

 (a) (1)

through

(4)

 of this section.

•

“

‘

 (1) Adequately wet asbestos-containing waste’

materials as follows:

30..

 Respondent failed to adequately wet and keep wet,

containerize, and label all regulated asbestos-containing waste

materials,

thereby

causing

allowing

 the discharge of visible

emissions.

31.

 Respondent’ by its failure as alleged herein,

has

‘

(2002), and 40 CFR 61.150(a) (1).

‘

WHEREFORE,

Complair~ant,

PEOPLE

THE

STATE

ILLINOIS,

res~ectfu11yrequests that the Board enter an order ag~instthe

Respondent

and

 in favor of the Complainant:

‘

‘Authorizing

hearing

this

matter

which

time,

‘

Respondent

will

required

answer

the

allegationsherein;

‘

•20

Finding

that’

Respondent

has

violated’Section

.9.1(d)

(1)

the Act’ and ‘40

 CFR, 61.150(a) (1);

‘

3.’

Ordering

Respondent

cease

and

desist

from

further

violations of Section 9.1(d) (1)

 of the Act and 40 CFR

61. 150(a)

(1)

 ;‘

‘

‘‘

‘

‘4.

Assessing,

 against Respondent a civil penalty of Fifty

Thousa~id Dollars

($50,000.00)

‘for

each

and

every

violation

the

Act and 40 C.F.R.

 61.150(a) (1), with an additional penalty, of Ten

Thousand

Dollars

 ($10,000.00) ~er,day for each day of violation;

5.

 Requiring Respondent to pay all costs of this proceeding

pursuant to Section 42(f)

 of the’Act, including expert

witness,

consultant,

 and attorney fees; and

6.

 Granting such• other relief as this Board deems

app±’opriate

and

just.

‘‘

COUNT

 VII’

FAILURE TO DEPOSIT RACMAT

 A PERMITTED

 SITE’

1-28.

 Complainant realleges and incorporates by reference

herein, paragraphs

 1 through 28’ of Count. II ,as paragraphs

1

through 28 of this Count VII.

,‘

‘

29.

 Sections 61.150(b) (1)

 set forth within

the

NESHAP

for

asbestos,

CFR

61.150(b)

(1)’

(October

10,

 2q03),

titled, ‘Standard for Waste Disposal for ‘Manufacturing,

‘

Fabricating,

Demolition,

Renovation,

and

Spraying

Operations,

p’royides

pertinent

 part as follows:

‘

-21-

•

‘

,‘

 Each’ owner or ope~atorof any source covered under the

•

‘

provisions of §~61.l44, 61.145, ‘61.1,46, and 61.147

 shal,l

comply with the following provisions

•

‘

 (b) All asbestos-containing waste material shall be

•

I’

‘

 deposited as soon as is practical by

 the’ waste

•

‘

 generator at:

‘

(1) A waste disposal site operated in accordance with

the provisions of Section 61

 154,

or

•

30.

 Respondent failed to dispose of all RACM and asbestos-

containing waste material generated during renovation activities

soon

i,s

practical.’

‘

31.

 Respondent,

 by his failure as alleged herein,

 Respondent

has violated Section 91

 (d) (1)

 of the Act,

 415 ILCS 5/9

 1(d) (1)

(2002),

 and 40 CFR’61.150(b)

‘

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully ±~eque~ts

 that the Board enter an order against the

Respondent and in favor of the Complainant:

1

 Authorizing a hearing in this matter at which time

Respondent

 will be required’to answer the allegations herein;

Finding

that

Respondent

has

violated

Sections

(d)

(1)

e-f---theA-c-t---a-n.d—4-0--CF-R—6-1-.-l5-0-(-b-)-.—-

3

 Ordering Respondent to cease and desist from any further

violations of Section

9

 1(d) (1)

 of the Act and 40 CFR 61 150(b)

4

 Assessing against Respondent a civil penalty of Fifty

Thousand Dollars

 ($50,000.00)

 for each ‘and every violati n of the

Act

and

pertinent,regulations,

with

additional

 penalty of Ten

:,

Thousand

Dollars

($10,000

00)

per

day

for

each

day

violation,\

-22-,

‘

Requiring

Respondent

pay

 all costs of this proceeding

pursuant

 Sect±on’42(f) of the Act, including expert witness,

consultant,

and

attorney

fees;

and

6.

 Granting’such other relief as this Board deems

appropriat,e and just.

PEOPLE OF THE STATE OF ILLINOIS,

LISA

MADIGAN

Attorney

General

State

Illinois

BY:,

MATTHEW

 J. DUNN,

 Chief

Environmental Enforcement/

Asbesto,s

Litigation

Division

/

Environmental Bureau

Assistant Attorney General’

Of Counsel:

ZEMEHERET

BEREKET-AB

Assistant

Attorney

General

Environmental Bureau

188

Randolph

St,

20th

Fl.

Chicago,

 Illinois 60601

‘(312)

814-3816

G

\Environitiental Enforcement\Z ,BEREKET-AB\OldenbergerCoinplaint .wpd

-23-

CERTIFICATE OF SERVICE’

I, the undersigned, certif~’

that I have served the attached

Complaint, Notice ofFiling, and

Certificate ofService via United States Postal certified mail upon:

Bryan

Selander’

Schlueter Ecklund

4023

Charles Street

Rockfoi~d,Illinois61108

ZEMEHERET BEREKET-AB

Assistant Attorney General

Environmental Bureau

188

W. Randolph St., 20th Fir.

Chicago, Illinois 60601

G :\Environmental Enforcement\Z

t3EREKET-AB\oldenbergercertificate 0904.wpd