PEOPLE OF
THE
STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General
of the
State ofIllinois,
Complainant,
)
)
PCBNo.
________
)
(Enforcement)
)
ASBESTOS
CONTROL AND
)
ENVIRONMENTAL
SERVICES CORP.,
an Illinois corporation,
)
Respondent.
)
NOTICE OF FILING
TO:
Daniel
T.
Coyne,
President
Roy
D.
Winn
Asbestos Control and Environmental
Registered Agent
Services,
Corp.
319 South Naperville Road
#201
31
West 780 Poss Road
Wheaton, Illinois
60187
Eola, Illinois
60519
PLEASE TAKE NOTICE that I have today filed the Complaint with the Office of the
Clerk of the Illinois Pollution Control Board, a true and correct copy of which is
attached hereto
and herewith served upon you.
Pursuant to 35
Ill. Adm.
Code
103.204(f), I am required to
advise
you
that failure to 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 forpurposes of this proceeding.
Ifyou have any questions about this procedure, you
should contact the hearing officer assigned to this proceeding, the Clerk’s
Office or an attorney.
Pursuant to
415 ILCS
5/3 1(c)(1), I am required to advise you that financing may be available
through the Illinois Environmental Facilities Financing Act to correct the violations.
PEOPLE OF THE STATE OF
ILLINOIS,
by LISA MADIGAN, Attorney General
ofthe State ofIllinois
BY:
L~t1-Wl
~
BRIDGET M. CARLSON
Assistant Attorney General
Environmental Bureau
188 West Randolph Street, Suite 2001
Chicago, Illinois 60601
(312)814-2069
AttorneyNo.
99000
BEFORE THE ILLINOIS POLLUTION CONTROL BOARP~E C E ~V E D
CLERK’S OFFICE
)
)
)
)
v.
MAR
17
2004
STATE
OF
ILLINOIS
Pollution Control Board
)
)
RECE~VED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
MAR
172004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF
ILLINOiS
)
Pollution
Control Board
Complainant,
)
)
PCBO4-
/j,~)-.
v.
)
)
(Enforcement)
ASBESTOS CONTROL AND
)
ENVIRONMENTAL
SERVICES CORP.,
)
an Illinois corporation,
)
)
Respondent.
)
COMPLAINT
Complainant,
PEOPLE OF THE
STATE OF ILLiNOIS, by LISA MADIGAN, Attorney
General ofthe
State ofIllinois, on her own motion and at the request ofthe Illinois
Environmental Protection Agency (“Illinois EPA”), complains ofRespondent, ASBESTOS
CONTROL AND ENVIRONMENTAL SERVICES CORP., as follows:
COUNT I
AIR POLLUTION
1.
This Complaint is brought
on
behalfof the People of the State of Illinois by Lisa
Madigan, the Attorney General ofthe State of Illinois, on her own motion and upon the request
ofthe Illinois Environmental Protection Agency (“Illinois EPA”) pursuant to the terms and
provisions of Section 31 ofthe Illinois Environmental Protection Act (“Act”),
415
ILCS
5/31
(2002).
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
(2002),
and charged,
inter alia,
with the duty of
1
enforcing the Act.
3.
At all times relevant to
this Complaint, Respondent, Asbestos Control and
Environmental
Services Corp. (“ACES”), has been and is an Illinois
corporation qualified to do
business in the State ofIllinois.
ACES’ principal business address is P.O. Box 945, Wheaton,
Illinois.
4.
ACES is a contractor licensed by the Illinois Department ofPublic Health to
conduct asbestos abatement activities.
ACES engages in the removal and disposal ofregulated
asbestos-contained material (“RACM”) and asbestos containing waste material (“ACWM”)
generated during demolition and renovation at various commercial and industrial facilities.
5.
On November21,
2002, the Illinois
EPAreceived from ACES a Notification of
Demolition and Renovation informing the Illinois EPA of scheduled renovation activities at a
vacant warehouse located at 816 West ~
Place, Chicago, Cook County, Illinois
(“facility”).
facility.
6.
The notification stated that the building is vacant and owned by AB M LLC.
The
notification also indicated that approximately 6,500 lineal feet of RACM on pipes would be
removed by ACES utilizing negative air pressure, wetting
and containment to prevent the
emission of asbestos.
7.
The notification stated that the work at the facility was to commence on November 25,
2002 and be completed on December 2, 2002.
8.
On December 19,
2002 the Illinois EPA and the City ofChicago Department of the
Environment (“DOE”) performed a routine compliance inspection at the facility pursuant to the
notification submitted by ACES.
2
9.
During the December 19, 2002
inspection, the Illinois EPA inspector (“inspector”)
entered
a containment area where asbestos removal was ongoing.
The inspector witnessed a
worker using a wire brush to remove RACM from a pipe recently stripped ofinsulation.
The
worker then proceeded to cut off a three foot section of insulation and drop it into a disposal bag
without properly wetting the materials.
At this time,
two workers were still in the process of
erecting the containment and installing negative air pressure machines and there was no evidence
ofwetting.
10.
Under the removal area, the inspector observed dry, friable suspect material.
11.
The inspector also inspected a dumpster which was used to store all the asbestos
disposal bags.
The inspector observed a disposal bag not fully taped with duct tape.
The
inspector looked inside the bag and could tell that the material inside the bag was completely dry.
The inspector then obtained samples from three separate bags in
the dumpster.
The samples are
identified as JZ
12-19-02-01, JZ 12-19-02-02 and JZ
12-19-02-03.
All three ofthe bags
contained dry, friable suspect material.
Analytical testing revealed that sample JZ
19-19-02-0 1
contained
18
chrysotile, sample JZ
12-19-02-02 contained
15
chrysotile and sample JZ
12-
19-02-03 contained 10
chrysotile
and 10
amosite asbestos.
12.
The three bags of dry, friable suspect material were also witnessed by two DOE
inspectors.
13.
The inspector also obtained a sample of the dry, friable suspect material inside the
containment near where the bags were stored.
The sample
is identified as JZ
12-19-02-04.
Analytical testing results of the sample revealed that it contained 15
chrysotile asbestos.
14.
The inspector also obtained a sample ofdry, friable suspect material from the floor
3
of a previously cleanedarea.
The sample
is identified as JZ
12-19-02-05.
Analytical test results
ofthe sample revealed that it contained 40
chrysotile asbestos.
15.
Section 9(a) ofthe Act, 415
ILCS
5/9(a)
(2002), provides as follows:
No person shall:
Cause or threaten to
allow the discharge ofany
contaminant into the
environment in any state to as 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.
16.
Section 201.141 of the Illinois Pollution Control Board (“Board”) Air Pollution
Regulations,
35
Ill. Adm.
Code 201.141, provides as follows:
No person shall cause or threaten or allow the discharge or emission ofany
contaminant into the environment in any State so 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 ofthis
chapter or so as to prevent the attainment or maintenance ofany applicable
ambient air quality standard.
17.
Section 3.165 ofthe Act, 415 ILCS 5/3.165 (2002), contains the following
definition:
“CONTAMINANT” is any
solid, liquid, gaseous matter, any odor, or
any
form ofenergy, from whatever source.
18.
Asbestos fibers are a “contaminant” as that term is defined by Section
3.165
of the
Act, 415 ILCS
5/3.165
(2002).
19.
Section 3.115 ofthe Act, 415 ILCS 5/3.115
(2002), contains the following
definition:
“AIR POLLUTION”
is the presence in
the atmosphere ofone ormore
4
contaminants in sufficient quantities and ofsuch characteristics and
duration as to be
injurious to human, plant, or animal life, to health, or
to property, or to unreasonably interfere with the enjoyment of life or
property.
20.
Asbestos
is a knownhuman carcinogen which can cause orthreaten to
cause serious health problems.
21.
Section
3.3 15 ofthe Act, 415 ILCS
5/3.3 15 (2002), provides
the
following definition:
“PERSON” is
any individual, partnership, co-partnership, firm,
company, limited liability company, corporation, association, joint-
stock company, trust,
estate, political subdivision, state agency, or any
other legal
entity, or their legal representative, agent, or assigns.
22.
ACES is a corporation and is therefore a “person” as that term is defined by Section
3.315 ofthe Act, 415 ILCS 5/3.3
15 (2002).
23.
ACES caused or allowed friable RACM or ACWM to be deposited, uncontained,
on the floor ofthe facility.
Additionally, during renovation, ACES failed to follow proper
emission control procedures such as wetting, and keeping the RACM
and ACWM wet.
24.
ACES has caused, threatened or allowed the discharge or emission of asbestos into
the environment so as to
cause air pollution in that dry, friable asbestos-containing material was
removed, left in place and improperly bagged at the facility during and after improper removal
activities.
25.
By failing to wet all asbestos and allowing dry, friable asbestos to remain in a
friable state, ACES has caused, threatened or allowed air pollution in Illinois, in violation of
Section 9(a) of the Act, 415 ILCS 5/9(a) (2002), and Section 201.141
ofthe Board Air Pollution
Regulations, 35 Ill. Adm.
Code 201.141.
5
WHEREFORE, Complainant, PEOPLE
OF THE STATE OF
ILLINOIS, requests that the
Board enter an
order in favor of Complainant and against Respondent, Asbestos Control and
Environmental
Services Corp.:
1.
Authorizing a hearing in this matter, at which time the Respondent will be required to
answer the allegations herein;
2.
Finding that theRespondent has violated Section 9(a) of the Act and Section 201.141
of35 Iii. Adm.
Code;
3.
Ordering the Respondent to cease and desist from any further violations ofSection
9(a) of the Act and
Section 201.141
of 35
III. Adm.
Code;
4.
Assessing against the Respondent a civil penalty ofFifty Thousand Dollars
($50,000.00) for each and every violation of the Act and pertinent regulations, and an additional
civil penalty ofTen Thousand Dollars ($10,000.00) for each day ofcontinued
violation;
5.
Ordering the Respondent to pay all
costs, including attorney, expert witness and
consultant fees expended by the State in its
pursuit ofthis action; and
6.
Granting
such other relief as the Board deems appropriate and just.
COUNT II
FAILURE
TO FOLLOW PROPER EMISSION CONTROL
PROCEDURES
1-16.
Complainant realleges and incorporates herein by reference paragraphs
1 through
14
and paragraphs 21
and 22 ofCount I as paragraphs
1 through
16 ofthis Count II.
17.
Section 9.1(d) of the Act,
415 ILCS
5/9.1(d) (2002), provides in pertinent part as
follows:
6
No person shall:
1.
Violate any provisions ofSections
111,
112,
165, and 173 ofthe
Clean Air Act, as now or hereafter amended, or federal regulations
adopted pursuant thereto.
18.
Pursuant to Section
1 12(b)(1) of the Clean AirAct
(“CAA”), 42 USC 7412(b)(1),
the Administrator of the United States Environmental Protection Agency (“USEPA”) has listed
asbestos as a hazardous airpollutant.
19.
Section
112(d) of the CAA, 42 USC 7412(d), titled
Emissions Standards,
provides
in pertinent part as follows:
1.
The Administrator shallpromulgateregulations establishing-emission
standards for each category or subcategory ofmajorsources and area
sources ofhazardous air pollutants listed for regulation...
20.
Section
112(h) of the CAA,
42 USC 74 12(h), titled
Work Practice Standards and
Other Requirements,
provides
in pertinent part as follows:
1.
Forthe purposes ofthis section, if it is not feasible in thejudgment 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,
operation
standard,
or
combination
thereof,
which
in
the
Administrator’s
judgment
is
consistent
with
the
provisions
of
subsection (d) or (f) ofthis section.
21.
On June 19,
1978, the Administrator determined that work practice standards rather
than emission standards are appropriate in the regulation of asbestos, 43
Fed. Reg. 26372 (1978),
and therefore, pursuant to
Section
112 of the CAA, the USEPA has adopted
National Emission
Standards for Hazardous Air Pollutants (NESHAP), including asbestos, 40 CFR 61,
Subpart M.
22.
Section 61.141 ofthe USEPA’s NESHAP, 40 CFR 61.141(2002), provides in part as
follows:
7
All termsthat are usedin this subpart and arenot definedbelow are giventhe
same meaning as in the Act and in subpart A ofthis part.
Adequatel~)~
wet
means sufficientlymix orpenetratewith liquid to preventthe
release
of particulates.
If visible
emissions
are
observed
coming
from
asbestos-containing
material,
then that
material
has
not been adequately
wetted. However, the absence ofvisible emissions is not sufficient evidence
of being adequately wet.
Asbestos
means
the
asbestiform
varieties
of
serpentinite
(chrysotile),
riebeckite
(crocidolite),
cummingtonite-grunerite,
anthophyllite,
and
actinolite-tremolite.
Asbestos-containing waste materials
means mill tailings or any
waste that
contains commercial asbestos and is
generated by a
source
subject to
the
provisions ofthis
subpart.
This
term includes filters from control devices,
friable
asbestos
waste
material,
and
bags
or
other
similar
packaging
contaminated with
commercial asbestos.
As
applied
to
demolition
and
renovation operations, this term also includes regulated asbestos-containing
material waste and materials contaminated with asbestosincluding-disposable
equipment and clothing.
Cutting
means
to
penetrate
with
a
sharp-edged instrument
and
includes
sawing, but does not include shearing, slicing or punching.
Facility
means any institutional, commercial, public, industrial, orresidential
structure,
installation,
or building
(including
any
structure,
installation or
building containing condominiums or individual dwelling units operated as
a residential cooperative, but excluding residential buildings having four or
fewer dwelling units); any ship; and any active orinactive waste disposal site.
For purposes of this
definition,
any building,
structure, or installation that
contains a loft used as a dwelling is not considered a residential structure,
installation, or building.
Any structure,
installation or building
that
was
previously subjectto this subpart is not excluded, regardless ofits current use
or function.
Friable asbestosmaterial
means anymaterial containing morethan
1 percent
asbestos as determinedusing the method specified in appendix A, subpart F,
40 CFR 763
section
1, Polarized Light Microscopy,
that, when dry can be
crumbled, pulverized,orreducedto powderby hand pressure.
Ifthe asbestos
content is less than
10 percent as determined by a method other than point
counting bypolarized light microscopy (PLM), verifythe asbestos contentby
point counting using PLM.
8
Grinding
means
to
reduce
to
powder or
small
fragments
and
includes
mechanical chipping or drilling.
Leak-tight
means that solids
or liquids
cannot escape or spill
out.
It
also
means dust-tight.
Nonfriable asbestos-containing material
meansany material containingmore
than
1 percent asbestos as determinedusing themethod specifiethriappendix
A, subpart F, 40 CFR part 763, section
1, Polarized Light Microscopy, that,
when dry, cannot be
crumbled, pulverized or reduced to
powder by hand
pressure.
Owner or operator ofa demolition orrenovation 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 supervises the demolition or renovation operation, or both.
Planned renovation operations
means a renovation operation, or a number
ofsuch operations, in which some RACMwill be removed orstrippedwithin
a given period oftime and that can be predicted.
Individual nonscheduled
operations are included if a number of such operations can be predicted to
occur during a given period oftime based on operating experience.
Regulatedasbestos-containing material
(RACM) means (a) Friableasbestos
material,
(b)
Category
I
nonfriable
ACM
that
has
bepome
friable,
(c)
Category I nonfriable ACM
that will be or has been subjected to
sanding,
grinding, cutting or abrading, or (d) Category II nonfriable ACM that has a
high probabilityofbecoming or hasbecome crumbled, pulverized,orreduced
to
powder by
the
forces
expected
to
act
on
the material
in
the course of
demolition or renovation operations regulated by this subpart.
Renovation
means altering a facility or one or more facility components in
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.
Strip
means
to
take
off RACM
from
any
part
of a
facility
or
facility
components.
23.
The facility located at 816 West
47th
Place, Chicago, Illinois is a “facility” as that
term is defined in 40 CFR 61.141.
9
24.
The removal of asbestos at the facility constituted a “renovation” as that term is
defined in
40 CFR 61.141.
25.
Section 61.145(a) ofUSEPA’s NESHAP, 40 CFR 61.145(a) (2002), titled
Standard
for demolition and renovation: Applicability,
provides in pertinent part as follows:
The requirements ofparagraphs (b) and (c) ofthis
section apply to each
owner or operator of a demolition or renovation activity, including the
removal ofRACM as follows:
*
*
*
(4) In a facilitybeing renovated, including any individual nonscheduled
renovation operation, all the requirements ofparagraphs (b) and (c) ofthis
section apply if the combined amount of RACM to
be stripped, removed,
dislodged, cut, drilled, or similarly disturbed is
(i) At least 80 linear meters (260 linear feet) on pipes or at least
15 square
meters (160 square feet) on other facility components.
26.
According to ACES Notification ofRenovation the amount ofRACM to be
removed was approximately
6,500
lineal feet.
Thus, the requirements of40
CFR 61.145(c)
apply.
27.
Section
61.145(c)(3) and (c)(6) ofUSEPA’s NESHAP for asbestos, 40 CFR
61.145(c)(3) and (c)(6) (2002), as adopted in Section 9.1(d) of the Act, 415 ILCS
5/9.1(d)(2002),
titled,
Standardfor demolition and renovation:
Proceduresfor asbestos emission control,
provides in pertinent part as follows:
Each owner or operator of a demolition or renovation activity to
whom
this paragraph applies, according to paragraph (a) of this section, shall
comply with the following procedures:
*
*
*
(3)
When RACM is stripped from
a facility component while it
remains in place in the facility, adequately wet the RACM during
10
stripping operations.
*
*
*
(6)
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 in preparation for
disposal in accordance with §61.150;.
28.
On at leastNovember
19, 2002, or on a date or dates better known to
ACES, ACES failed to
adequately wet all RACM in place before stripping it frOm facility
components, in violation of Section 9.1(d)(1) ofthe Act, 415
ILCS 5/9.1(d)(1) (2002),
and 40 CFR 61.145(c)(3).
29.
On at leastNovember 19, 2002,
or on a date or dates better known to
ACES,
ACES failed to adequately wet all RACM and ensure that it remained wet until
collected
and contained or treated in preparation for disposal, in violation of Section
9.l(d)(1) ofthe
Act, 415 ILCS
5/9.1(d)(1) (2002), and 40 CFR 61.145(c)(6).
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF
ILLINOIS, requests
that the Board enter an order in favor of Complainant
and against Respondent, Asbestos
Control and Environmental Services Corp.:
1.
Authorizing a hearing in this matter, at which time the Respondent will be
required
to answer the allegations herein;
2.
Finding that the Respondent has violated
Section 9. 1(d)(1) ofthe Act and 40
CFR 61.145(c)(3) and (c)(6);
3.
Ordering the Respondent to cease and desist from any further violations of
Section 9.1(d)(l) ofthe Act and 40 CFR 61.l45(c)(3) and (c)(6);
11
4.
Assessing against the Respondent a civil penalty ofFifty Thousand Dollars
($50,000.00) for each and every violation ofthe Act and pertinent regulations, and an
additional civil penalty ofTen Thousand Dollars ($10,000.00) for each day ofcontinued
violation;
5.
Ordering the Respondent to pay all costs, including attorney,
expert
witness
and consultant fees expended by the
State in its pursuit ofthis action; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT III
IMPROPER DISPOSAL
1-26.
Complainant realleges and incorporates herein by reference paragraphs
1
through
14 and paragraphs 21
and 22 of Count I, and paragraphs
17 through 26 ofCount
II,
as paragraphs
1
through 26
ofthis Count III.
27.
Section
61.150 ofUSEPA’s NESHAP,
40 CFR 61.150 (2002), as adopted
in Section 9.1(d) ofthe Act,
titled
Standardfor waste disposalfor manufacturing,
fabricating,
demolition,
renovation and spraying operations,
provides as follows:
Each owner
or
operator of any
source
covered
under
the
provisions
of
§~61.144,61.145,
61.146,
and
61.147
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 generatedby the source, oruseone ofthe
emission control and waste treatment methods specified in paragraphs
(aX
1)
through (4) ofthis section.
(1)
Adequately wet asbestos-containing waste material
as follows:
(i)
Mix control device asbestos waste to form a slurry; adequatelywet other
12
asbestos-containing waste material; and
(ii)Dischargeno visible emissions to the outside air from collection, mixing,
wetting, and handling operations, orusethe methods specified by §61.152 to
clean emissions containing particulate asbestos material before they escape
to, or are vented to, the outside air; and
(iii) After wetting, seal
all asbestos-containing waste material
in leak-tight
containers while wet; or, formaterials that will not fit into containers without
additional breaking, put materials into leak-tight wrapping.
28.
On at least November
19, 2002, or on a date or dates better known to ACES, ACES
failed to adequately wet all asbestos-contained waste material.
29.
On at least November
19, 2002, or on a date or dates better known to ACES, ACES
failed to adequately seal all asbestos containing material in a leak-tight container when it failed to
properly seal a disposal bag stored in the dumpster.
30.
ACES, by its actions and omissions as allegedherein, violated Section
9. 1(d)(1) of
the Act, 415 ILCS
5/9.1(d)(1) (2002) and 40 CFR
61.150(a).
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF
ILLINOIS, requests that the
Board enter an order in favor ofComplainant and against Respondent, Asbestos Control and
Environmental Services Corp.:
1.
Authorizing a hearing in this matter, at which time the Respondent will be required to
answer the allegations herein;
2.
Finding that the Respondent has violated
Section 9.1(d)(1) ofthe Act and 40 CFR
61.150(a);
3.
Ordering the Respondent to
cease and desist from any further violations of Section
9.1(d)(1) ofthe Act and 40 CFR 61.150(a);
4.
Assessing against the Respondent a civil penalty of Fifty Thousand Dollars
13
($50,000.00) for each and every violation ofthe Act and pertinent regulations,
and an additional
civil penalty of Ten Thousand Dollars ($10,000.00) for each day ofcontinued
violation;
5.
Ordering the Respondent to pay all costs, including attorney, expert witness and
consultant fees expended by the State in its pursuit of this action; and
6.
Granting such other relief as the Board deems appropriate and just.
PEOPLE OF THE
STATE OF ILLINOIS
LISA MADIGAN, Attorney General
ofthe State ofIllinois
MATTHEW J. DUNN, Chief
Environmental Enforcement!
Asbestos Litigation Division
.
.
ZE
Chief
Environmental Bureau
Assistant Attorney General
QfCoun~i:
Bridget M. Carison
Assistant Attorney General
Environmental Bureau North
188 W. Randolph St., 20th Floor
Chicago, Illinois
60601
(312)814-0608
(312) 814-2347
14
CERTIFICATE OF SERVICE
It is hereby certified that a true and correct copy ofthe Complaint was sent by certified
mail with return receipt requested to each of the persons listed on the Notice of Filing on March
17,2004.
BY:
______________
BRIDG~M. CARLSON
It is hereby certified that the originals plus nine
(9)
copies of the foregoing were hand-
delivered to the following person on March 17, 2004:
Pollution Control Board, Attn: Clerk
James R. Thompson Center
100
West Randolph Street, Suite 11-500
Chicago, Illinois 60601
BY:
______________
BRIDGET M. CARLSON
