RECE~V~
CLERK’S OFFICE
JUN 2k
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF ILLINOIS
Pollution Control board
PEOPLE OF THE STATB OF ILLINOIS,
)
)
Complainant,
)
)
)
)
No.PCBO5-181
PATTISON ASSOCIATES
LLC, an
)
(Enforcement
-
Air)
Illinois limited liability company,
)
and 5701
SOUTH CALUMET LLC, an
)
Illinois limited liability company,
)
)
Respondents.
)
NOTICE OF FILING
•
PLEASE TAKE NOTICE that we have today, June 17,
2005,
filed with the Office
ofthe Clerk ofthe Illinois Pollution Control Board an original
and fourteen (14) copies of
the attached Respondents’
Motion to Dismiss Counts I-V of the Complaint Pursuant to
Section 2-615 ofthe Illinois Code of Civil Procedure, a true and correct copy ofwhich is
hereby served upon you.
DATED:
June 24, 2005
Respectfully submitted,
PATTISON ASSOCIATES, LLC
and
5701
SOUTH CALUMET, LLC
By:_____
One of Their Attorneys
Neal H. Weinfield
Sonal P. Desai
Bell, Boyd
& Lloyd LLC
70
West Madison Street
Suite 3100
Chicago, IL 60602
312.372.1121
401350/F/I
CERTIFICATE
OF SERVICE
Sonal Desai, an attorney, hereby certifies that she caused a copy ofthe attached
Respondents’ Motion to Dismiss Counts
I-V
ofthe Complaint Pursuant to Section 2-615
ofthe Illinois Code ofCivil Procedure to
be served upon:
Via regular U.S.
Mail, postagepre-paid,
on June24, 2005.
Sonal P. Desai
Paula Becker Wheeler
Office ofthe Attorney General
188 West Randolph,
20th
Floor
Chicago, IL 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Ste.
11-500
100 W. Randolph Street
Chicago, Illinois
60601
401 350/F/I
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
JUN
242005
STATE OF ILLINOIS
PEOPLE OF THE
STATE
OF
ILLINOIS,
)
Pollution Control Board
)
Complainant,
)
)
-vs-
)
)
No.PC1305-181
PATTISON ASSOCIATES LLC, an
)
(Enforcement
-
Air)
Illinois
limited liability company,
)
and 5701
SOUTH CALUMET LLC, an
)
Illinois
limited liability company,
•
)
)
Respondents.
)
RESPONDENTS’ MOTION
TO DISMISS COUNTS I-V
OF
THE
COMPLAINT PURSUANT TO
SECTION 2-615 OF
THE ILLINOIS
CODE OF CIVIL PROCEDURE
Respondents, Pattison Associates,
LLC and 5701
South Calumet, LLC
(collectively, “Pattison”), by their attorneys, and pursuant to Section
2-615
ofthe Illinois
Code of Civil Procedure, move to dismiss Counts I through V for failure to
state a claim.
In support of their motion, Pattison states as follows:
I.
Legal Standard
1.
When evaluating a motion
to dismiss, while the court will accept as true
all well-pleaded facts
and reasonable inferences therefrom, it need not accept conclusions
or inferences unsupported by specific factual allegations.
Knox
College
v.
Celotex Cog.,
88 Ill.2d
407, 426-7, 430 N,E.2d 976, 986 (1981).
Although a court will liberally
construe pleadings, the complaint still must allege facts sufficient to state a cause of
action.
Premier Electrical Consruction Co.,
159
Ill,App.3d 98,
512 N.E.2d 44, 47
(1’~
Dist.
1987).
lii
order to state a cause of action,
a pleading must be
both factually and
legally sufficient,
setting forth
a legally cognizable claim, as well as facts bringing the
claim within the cause of action alleged.
J. Eck & Sons,
Inc., v. Reuben H. Donnelley
Corp., 213
Ill.App.3d 510,
572 N.E.2d 1090,
1090-91
(1st
Dist. 1991).
II.
Argument
A.
Count
1
2.
Count I ofthe Complaint alleges that Pattison violated Section 9(a)
of the Illinois Environmental Protection Act (the “Act”) which prohibits a person from
“causing
or threatening
or allowing
the discharge or emission of any contaminant
into the environment.
.
.to cause or tend to cause
airpollution.”
See
415
ILCS
5/9(a)
(2002);
35 Admin.
Code 201.141
(emphasis added).
“Air pollution” is defined as the
“presence in
the
atmosphere
ofone or more contaminants
in
sufficient quantities
and of
such characteristics and duration as to be
injurious....”
See
415
ILCS
5/3.115
(2002)
(emphasis added).
3.
The State has not pled that Pattison caused air pollution,
and
indeed no such allegation can be
made because none ofthe tests cited
in the Complaint
sampled the air.
The pre-removal tests cited
were of(l) the asbestos material itself,
and
(2) microvacuum sampling that, under ASTM Standard D5755-03, tests
non-
airborne
dust
for levels of asbestos structures.
See
Compi.
¶~J
8-9,
10.
There is
no factual allegation that the asbestos entered the “atmosphere,” let
alone existed in
“sufficient quantities” and of such “characteristics and duration as
to be injurious.”
4.
Pattison cannot tell
from the Complaint if it is alleged to
have
removed the asbestos, and
for that mater
from where,
and when, and how much.
It is the
State’s allegation
simply that friable asbestos was
seen on the Property.
See
Compi. ~
7,
12.
There are simply
no
factual allegations that would
allow Pattison
to determine how
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2
this violated the law.
It appears that the State has filed this Complaint more
tQ
engage in
a discovery fishing expedition than to
inform Pattison ofits
alleged wrongdoing.
B.
Counts II-IV
5.
Counts two through four of the Complaint allege violations of the
“Standard for demolition and renovation” as set out in 40 C.F.R.
§
61.145.
Section
61.145(a)(4)
provides that the demolition and renovation standards apply only if certain
quantities of regulated asbestos containing material (“RACM”) are “to be
stripped,
removed,
dislodged,
cut,
drilled,
or similarly disturbed....”
40 C.F.R. 610145(a)(4)
(emphasis added).
6.
The State has alleged no evidence that Pattison stripped, removed,
dislodged, cut, drilled, or similarly disturbed asbestos from 5701
South Calurnet Avenue.
With respect to the basement of the building, the
State has not alleged that Pattison
conducted stripping, removal, dislodging,
cutting drilling, or similar
disturbance of the
alleged asbestos found in
the basement.
The Complaint does not even allege that Pattison
engaged in any handling of asbestos anywhere in the building.
Therefore, the State has
not pled sufficient facts
that Pattison violated the “Standard for demolition and
renovation,” and
counts two through four of the Complaint are also deficient.
C.
Count V
7.
Count five of the Complaint alleges
a violation of40 C.F.R.
§
61. 150(b)(1), titled “Standard for waste
disposal
for manufacturing, fabricating,
demolition, renovation,
and spraying operations.”
The waste disposal requirement set
forth in
§
61
.
150 applies, however, only to owners or operators covered under the
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3
provisions of~ 61.144, 61.145, 61.146, and
61.147.
None of these sections apply to
Pattison.
Section
61.145,
which applies to demolition and renovation, is inapplicable for
the reasons discussed in Paragraph six above.
Section 61.144 applies to
certain
manufacturing operations.
Section 61.146 applies to an operation in which asbestos-
containing materials are spray applied.
Section
6 1.147 applies to certain fabricating
operations.
Nowhere in the complaint is it alleged that Pattison engaged in a
manufacturing, fabricating, demolition,
or spraying operation.
There is absolutely no
allegation or evidence that Pattison manufactured, spray applied,
or fabricated asbestos.
Count five, therefore, is
deficient as well.
WHEREFORE,
respondents Pattison Associates, LLC and 5701 South Calurnet,
LLC respectfully request that
their motion be granted and the Complaint be
dismissed.
DATED:
June 24, 2005
Respectfully submitted,
PATTISON ASSOCIATES, LLC and
5701
SOUTH CALUMET, LLC
By:_______
One ofTheir Attorneys
Neal H. Weinfield
Sonal P.
Desai
Bell, Boyd
&
Lloyd LLC
70 West Madison Street
Suite 3100
Chicago, IL
60602
312.372.1121
401350/F/I
4
