Lisa
Madigan
ATlORNEY
GENERAL
OFFICE
OF THE
ATTORNEY
GENERAL
STATE OF
ILLINOIS
CLERç
OFFICE
APR
J
6
20119
STATE
OF
ILLINOIS
POllutjo
Control
Board
April
1, 2009
John T.
Therriault,
Assistant
Clerk
Illinois Pollution
Control
Board
James
R.
Thompson
Center,
Ste. 11-500
100
West Randolph
Chicago,
Illinois
60601
Re:
People v.
DavidJ. Shultz
Dear Clerk:
Dq
Enclosed
for
filing
please
find
the
original
and ten copies
of a
Notice
of Filing,
Entry
of
Appearance
and
Complaint
in regard
to the
above-captioned
matter.
Please
file the originals
and
return file-stamped
copies
to me
in the enclosed,
self-addressed
envelope.
Thank you
for
your
cooperation
and
consideration.
Very tru!y’ours,
Kristen
Laughridge
Gale
Environmental
Bureau
500
South Second
Street
Springfield,
Illinois
62706
(217)
782-9031
500 South
Second
Street,
Springfield,
Illinois
62706 e (217)
782-1090
TTY:
(877) 844-5461
• Fax: (217)
782-7046
100 West
Randolph Street,
Chicago,
Illinois
60601
(312)
814-3000
‘FFY:
(800)
964-3013
• Fax:
(312)
814-3806
/
KLG/pk
Enclosures
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
)
ILLINOIS,
Complainant,
vs.
)
PCB
No.
)
(Enforcement)
DAVIDJ.SHULTZ,
Respondent.
NOTICE
OF
FILING
To:
David
J.
Shultz
2816 Wordsworth
Road
OIS
Springfield,
IL 62711-4025
3oard
PLEASE
TAKE
NOTICE
that on
this date I
mailed for
filing with the
Clerk of
the
Pollution
Control
Board
of the
State
of Illinois,
a COMPLAINT,
a
copy
of which
is attached
hereto
and
herewith
served
upon
you.
Failure
to file
an
answer
to this Complaint
within
60 days
may
have
severe
consequences.
Failure
to answer
will
mean
that
all
allegations
in this 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.
]-
FURTHER,
please take
notice that
financing
may be
available,
through
the Illinois
Environmental
Facilities
Financing
Act,
20 ILCS
3515/1 (2006),
to
correct
the pollution
alleged in
the Complaint
filed
in this case.
Respectfully
submitted,
PEOPLE
OF
THE
STATE
OF
ILLINOIS
LISA
MADIGAN,
Attorney
General
of the
State of Illinois
MATTHEWJ.
DUNN,
Chief
Environmental
Enjotcement/Asbestos
Liflatii7Th42
%risten Laughridge
Gale
Assistant
Attorney
General
Environmental
Bureau
500 South
Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
April
1, 2009
2
CER11FICATE
OF SERVICE
I hereby
certify
that
I did
on
April 1,
2009, send
by certified mail, with
postage
thereon
fully
prepaid,
by
depositing
in
a United
States Post Office
Box
a true
and
correct
copy
of the
following
instruments entitled
NOTICE OF
FILING,
ENTRY
OF APPEARANCE
and
COMPLAINT:
To:
David J. Shultz
2816
Wordsworth
Road
Springfield,
IL 62711-4025
and the original and ten
copies
by
First Class
Mail with
postage thereon fully
prepaid of the
same foregoing
instrument(s):
To:
John T. Therriault,
Assistant Clerk
Illinois Pollution
Control
Board
James
R.
Thompson Center
Suite 11-500
100 West
Randolph
Chicago,
Illinois 60601
lSTEN LAUGHRIDGE
GALE
Assistant Attorney
General
This filing
is submitted on recycled
paper.
BEFORE
THE
ILLlNOS POLLUTION
CONTROL
BOARD
PEOPLE OF THE STATE
OF
)
LLlNOIS
)
)
CLERKs
OFFICE
CompIanant,
)
APR
06
2009
vs.
)
PCB No.
iLf
STATE
OF
IWNOIS
)
(Enforcement)
Pollution
Control
Board
DAVJDJ SHULTZ,
Respondent.
)
ENTRY
OF APPEARANCE
On
behalf
of the Complainant,
PEOPLE
OF THE STATE
OF ILLINOIS,
KRISTEN
LAUGHRIDGE
GALE,
Assistant
Attorney
General of
the State of Illinois,
hereby enters
her
appearance
as
attorney
of
record.
Respectfully submitted,
PEOPLE
OF
THE
STATE
OF ILLINOIS,
LISA
MADIGAN
Attorney General of
the
State
of
Illinois
MATTHEWJ.
DUNN,
Chief
Environmental
Enforcement/Asbestos
BY
9AiViSio/
Ifsten
Laughridge Gale
Environmental Bureau
Assistant Attorney
General
500 South
Second Street
Springfield, Illinois
62706
217/782-9031
Dated:
April
1,
2009
BEFORE THE ILLINOIS
POLLUTION
CONTROL BOARD
PEOPLE OF THE
STATE OF ILLINOIS,
)
ex reL
LISA
MADGAN,
Attorney
)
General of the State of Illinois,
)
Complainant,
)
v.
)
No.
\
EcvD
CLERKS
OFFICE
DAVID J.
SHULTZ,
Respondent.
))
‘
ADD
‘
fl
2009
STATE
OF
ILLINOIS
olIutjofl
Control
Board
COMPLAINT
The PEOPLE OF THE STATE OF ILLINOIS,
ex ref. LISA MADIGAN, Attorney General
of the State of
Illinois, on her own motion,
complains of the Respondent, DAVID
J.
SHULTZ,
as
follows:
COUNT I
ASBESTOS NOTIFICATION VIOLATION
1.
This count is brought on behalf
of the
People
of the State of Illinois, ex ref. LISA
MADIGAN,
the
Attorney General of the State of Illinois,
on her
own motion
pursuant to Section
42(d) and (e)
of the Illinois Environmental Protection Act (“the Act”), 415
ILCS 5/42(d) and
(e)
(2006).
2.
The
Illinois EPA
is an agency of the State
of Illinois
created by the Illinois
General Assembly
in
Section 4. of the Act, 415 ILCS 5/4 (2006), and charged,
inter
alia, with
the
duty
of enforcing the
Act.
3.
The Respondent, David J. Shultz, lives at 2816 Wordsworth Road, Springfield,
Sangamon County,
Illinois.
4.
Section 9.1(d) of the Act, 415
ILCS 5/9.1(d) (2006), provides:
1
(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;
5.
The regulations
on National Emission Standards
for Hazardous Air
Pollutants
(‘NESHAP”), 40 CFR et
seq. (1993), were adopted pursuant
to
Section 112
of
the Clean
Air
Act, 42 USC
7412.
Asbestos is regulated as
a
hazardous air
pollutant because it is
a
carcinogen.
6.
40 CFR
61.141
provides the following definitions:
Friable asbestos material mans
any
material
containing mor than
1
percent
asbestos as determined
using
the
method
specified in appendix E,
subpart E,
40
CFR part 763, section 1, Polarized Light Microscopy, that, when
dry, can be
crumbled, pulverized, or reduced to powder by hand
pressure.
*
*
*
Owner or 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
supervises
the
demolition or renovation operation, or both
*
*
*
Regulated asbestos-containing material (RACM) means
(a) Friable asbestos
material,...
*
*
*
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.
7.
40 CFR 61.145 provides, in pertinent part:
Standard for demolition and renovation
(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
2
owner or operator
of a
demolition
or renovation activity, including the
removal of
RACM as follows:
**
*
(4)
In
a facility being renovated, including any individual
nonscheduled renovation operation, all the requirements of
paragraphs
(b)
and
(c)
of this
section
apply if
the
combined
amount of RACM
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, or
(ii)
At least 1
cubic
meter (35 cubic feet) of facility
components where the
length
or area could not be
measured previously.
(b)
Notification requirements. 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.
8.
On
February
4, 1999,
PSI Environmental Geotechnical Construction Co. (“PSI”)
performed an Asbestos
Survey
&
Assessment Report for the St. John’s East/Building T Building
(“Building
T”) located at 400 North Ninth Street, Springfield, Sangamon County,
Illinois.
Building
T,
which was owned by St. John’s Hospital of the Hospital
Sisters
of
the Third Order of
St.
Francis, had
3
floors and a room on the roof
called
the
“penthouse.”
9.
The PSI Asbestos Survey & Assessment Report
stated that
the
mudded joint
packing on pipes in
Building
T
was asbestos containing material.
10.
Mudded joint packing is the
thermal insulation
on
the pipes in Building T.
II.
St. John’s
Hospital of the Hospital Sisters
of
the Third Order of St. Francis
(“St.
John’s Hospital) is a
non-for-profit corporation registered to do business in Illinois. It’s registered
3
location is 4936 LaVerna Rd, Springfield,
Sangamon County, IL. In 2004, St. John’s
Hospital
decided to
demolish Building T.
12.
In 2004, Parkland Environmental
Group performed
a walk
through of Building
T in
preparation of creating
a
proposal for demolition.
Parkiand Environmental Group observed
asbestos inspection tags on the insulation covering
the
pipes
in Building T.
13.
On August
19,
2004,
Parkland Environmental Group, submitted
a
Notification
of
Demolition and Renovation to the Illinois EPA for Building
T.
14.
The Notification of Demolition
and Renovation submitted by Par kland
Environmental Group on August
19,
2004 stated that there were 1,706 linear
fet
of regulated
asbestos containing material (“RACM”) on the pipes at Building T.
15.
Upon information and belief, at some time before August
9,
20 , Melvin
“Jay”
Tode,
the
Purchasing and Surplus Manager for St. John’s Hospital, allowed tt
Respondent,
DAVID SHULTZ, to
scrap materials from Building T, including the pipes and
C; oper
wire.
16.
On August
20, 2004, Parkland Environmental Group and Bigg; onstruction, Inc.
walked
through
Building
T.
17.
On August 20, 2004, Parkland Environmental
Group
observed
roken
joint
compound, a.k.a.
thermal insulation, on the floor in the penthouse.
18.
On September 3, 2004,
Parkland Environmental Group observ
1
stripped
insulation in the
penthouse and
on the
roof.
19.
On
September 9, 2004, Illinois EPA conducted an inspection of Building T.
20.
Illinois EPA observed thermal insulation on the roof
between
the
condensing
units,
and on the
floor in the doorway of the penthouse and within the penthouse.
4
21.
Illinois
EPA
also
observed stickers on the thermal insulation
on
the floor
in the
penthouse
that
state1
“DANGER, Contains Asbestos Fibers, Avoid Creating Dust,
Cancer
and
Lung Disease
Hazar
22.
Illinol
EPA
collected
seven samples of the thermal insulation
to analyze for
amples were
collected from the penthouse,
one sample was
collected
on the roof, and one sample was collected
from thermal insulation
in
the
imples
had no
moisture
and
were
reduced to powder by hand
pressure.
of the seven samples collected by the Illinois EPA
showed that all
of the
estos.
mal insulation in Building
T
was friable
asbestos containing
material
as
141, therefore the thermal
insulation was regulated asbestos
containing
approximately
August
9,
2004
and August
20, 2004, on dates
better
tnt, Respondent,
DAVID SHULTZ,
removed pipes and other material
•ig
but not
limited
to
from
the
penthouse, for
the purpose of selling
the
approximately August 9, 2004 and August 20, 2004,
on dates better
nt, Respondent,
DAVID
SHULTZ, removed the thermal
insulation from
without wetting the thermal insulation.
approximately August 9, 2004 and August 20,
2004, on dates better
3nt,
Respondent,
DAVID
SHULTZ, dropped, damaged
and disturbed
the
asbestos.
Five of tI
from thermal
insuIa
stairwell
landing.
A
23.
Anal
samples conta d
24.
1
nt
defined
by
40
CF:
material.
25.
Betw
known to the Respo
finm Building T,
inch
pip s and
maten 1.
26.
known to the
fc:po
the pipes
it Buildinc
2.
Betw
knovfn to the
Respo
thermal
insulation w
removing
the
insulation
from the pipes at Building
T.
5
28.
Between
approximately
August 9, 2004 and August
20,
2004,
on dates better
known
to the Respondent, Respondent,
DAVID SHULTZ, dropped
pipes and other
materials
that
had been
covered
in thermal
insulation from
the
roof of
Building
T
to
the ground below.
29.
Respondent,
DAVID
SHULTZ, altered components
in
Building
T, including
stripping and removing regulated
asbestos containing
material
from the pipes in Building
T,
and
therefore
was
“renovating”
Building T
as that
term
is defined by 40
CFR
61.141.
30.
Respondent, DAVID
SHULTZ, is an “operator” of a “renovation
activity” as
that
term is defined in 40 CFR 61.141.
31.
Respondent, DAVID SHULTZ, is not trained
in NESHAP requirements for
renovation of a building. Nor was
there an on-site representative trained in the NESHAP
requirements present during the renovation.
32.
The requirements of §61.145(b) and
(c)
apply
to the
Respondent,
DAVID
SHULTZ, and Building T because the facility being renovated
had a combined amount of
1,706
linear feet of
regulated asbestos
containing
material
on
pipes,
pursuant to §61 .145(a)(4).
33.
The Illinois EPA
did not
receive notification from
the
Respondent,
DAVID
SHULTZ,
for
the
renovation
of
Building
T.
34.
The Respondent, DAVID SHULTZ, did not provide written notification prior
to
the
renovation
of
Building
T, thereby violating 40 C.F.R. 60.145(b)(1) and Section 9.1(d)(1)
of the
Act, 415 ILCS
5/9.1(d) (2006).
PRAYER FOR RELIEF
WHEREFORE,
the Complainant, People of the State of Illinois, respectfully requests
that
this
Board
grant
the
following relief:
A.
Find that Respondent, DAVID SHULTZ, has violated Section 9.1(d)
of the Act,
415
ILCS 5/9(d) (2006), and 40 CFR 61.145(a) and (b)(1);
6
B.
Order
the Respondent
to cease
and desist from further
violations
of
the Act
and
associated regulations;
C.
Assess
against
the Respondent
a
civil
penalty of
fifty thousand dollars
($50,000.00)
allowed
for each of the violations
of the Act
and
an additional
penalty of ten
thousand dollars
($10,000.00)
for
each
day during
which
each
violation has continued
thereafter;
D.
Award
the Complainant
its costs
in this
proceeding, including
attorneys’
fees
and
expert
witness
fees and costs;
and
E.
Grant
such other relief
as the Board may
deem appropriate.
COUNT II
3ESTOS
RENOVATION
AND DISPOSAL
VIOLATIONS
1-32. Comp.
nant realleges and incorporates
herein
by
reference paragraphs
1
through 32 of
Count
s paragraphs
I through 32 of this
Count
II.
33.
40 CF 61.145(c)
(1993), provides,
in pertinent
part:
(c)
Proce
‘res for asbestos
emission control. Each
owner
or
operator
of a
demol
.n
or renovation
activity
to whom this paragraph
applies, according
to
parag ph (a) of
this section, shall
comply
with
the
following
procedures:
1)
Remove all RACM
from
a
facility being
demolished
or renovated
before any
activity begins
that
would
break
up, dislodge, or
similarly
disturb the material
or
preclude
access to the material
for
subsequent
removal.
RACM
need
not be
removed
before
demolition if:
(I)
It
is Category I nonfriable
ACM that is not in
poor
condition
and
not
friable.
(ii)
It is on a facility component
that
is encased
in
concrete
of
other similarly
hard material and
is adequately
wet
whenever
exposed during
demolition; or
(iii)
It
was not accessible for
testing and was, therefore,
not
discovered
until
after
demolition began and,
as a result
of
the
demolition, the
material cannot be
safely removed. If
not removed for safety
reasons,
the exposed RACM
and
7
any
asbestos-contaminated
debris
must be
treated
as
asbestos-containing
waste
material
and adequately
wet
at
all times
until disposed
of.
(iv)
They
are Category
II nonfriable
ACM
and
the
probability
is
low that
the
materials
will become
crumbled,
pulverized,
or
reduced
to powder
during
demolition.
**
*
(3)
When RACM
is
stripped
from a
facility component
while
it
remains
in place
in the facility,
adequately
wet
the
RACM during
the
stripping
operation.
*
**
(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; and
(ii)
Carefully
lower
the material
to
the ground
and
floor,
not
dropping,
throwing,
sliding,
or otherwise
damaging
or
disturbing
the material.
(iii)
Transport
the material
to th
ground
via
leak-tight
chutes
or
containers
if it
has been
removed or
stripped
more than
50
feet above
ground level
and was
not removed
as units
or in
sections
*
*
*
(8)
Effective
1 year
after
promulgation
of this regulation,
no RACM
shall
be stripped,
removed,
or
otherwise
handled
or
disturbed
at a
facility
regulated
by
this section
unless
at
least one
on-site
representative,
such as a
foreman
or
management-level
person
or
other authorized
representative,
trained
in
the
provisions
of
this
regulation
and the
means
of complying
with
them, is
present.
*
*
*
34.
40 CFR
61.150
(1993),
provides,
in pertinent
part:
Each
owner
or operator
of
any
source
covered
under
the
provisions
of
§
61.144,
61.145,
and 61.147
shall comply
with the following
provisions:
8
(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 material as follows:
(I)
Mix control
device asbestos waste
to
form
a
slurry;
adequately wet other asbestos-containing waste
material;
and
(ii)
Discharge no visible emissions to the outside air
from
collection,
mixing, wetting, and handling operations,
or use
the methods specified by [section] 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, for materials
that
will not
fit into containers without additional breaking, put
materials
into leak-tight wrapping; and
(iv)
Label the containers or wrapped materials specified in
paragraph (a)(1)(iii) of this section
using
warning
labels
specified
by
Occupational Safety and Health Standards
of
the Department
of Labor, Occupational Safety and Health
Administration (OSHA) under 29 CFR 1910.1001(j)(2) or
1926.58(k)(2)(iii).
The labels shall be printed in letters
of
sufficient size
and
contrast
to
be readily visible
and legible.
(v)
For
asbestos-containing waste material to be transported
off the facility site, label containers or wrapped materials
with the name of the
waste generator
and the location
at
which
the waste was
generated.
*
*
*
(b)
All
asbestos-containing waste material shall be deposited
as soon as is
practical
by the
waste generator at:
(1)
A
waste disposal site operated in accordance with the provisions
of
[section] 61.145, or
(2)
An
EPA-approved
site
that converts RACM
asbestos-containing
waste
material into nonasbestos (asbestos-free)
material
according to
the provisions of [section] 61.155.
9
*
*
*
35.
The
Respondent, DAVID SHULTZ, failed
to
remove all regulated
asbestos
containing
material
from Building T before removing
the pipes and other materials, thereby
violating 40 C.F.R. 61.145(c)(1)
and
Section
9.l(d)(l) of the Act, 415 ILCS
5/9.1(d)
(2006).
36.
The Respondent, DAVID SHULTZ, failed
to wet all regulated asbestos containing
material
during
and
after
the removal of the pipes from Building
T,
allowing the airborne
migration of asbestos fibers, thereby violating
40 C.F.R. 61.145(c)(3), 61.145(c)(6)(i), and
61.150(a)(1) and
Section 9.1(d)(1)
of the Act, 415 ILCS 5/9.1(d) (2006).
37.
The Respondent, DAVID SHULTZ, failed
to
carefully lower
the
regulated
asbestos
containing material to the ground and floor,
but dropped,
damaged and disturbed
the
thermal
insulation, thereby violating
40 C.F.R. 61.145(c)(6)(ii) and
Section
9.1(d)(1) of the Act,
415
ILCS 5/9.1(d) (2006).
38.
The
Respondent, DAVID SHULTZ, failed
to
transport the regulated asbestos
containing material
in leak-tight
chutes
or containers from the roof
to
the ground, thereby
violating 40C.F.R. 61.145(c)(6)(iii) and
Section
9.1(d)(1) of the
Act,
415 ILCS 5/9.1(d) (2006).
39.
The Respondent,
DAVID SHULTZ, failed
to
have
a
person
trained
in NESHAP
requirements
present during the renovation activities, thereby violating
40
C.F.R.
61.145
(c)(8)
and
Section 9.1(d)(1) of the Act,
415 ILCS
5/9.1(d) (2006).
40.
The Respondent,
DAVID SHULTZ, failed
to
deposit regulated asbestos
containing
waste
materials in
an
appropriate waste disposal site as soon as possible,
thereby
violating 40
C.F.R.
61.150(b)
and
Section
9.1(d)(1) of
the
Act,
415 ILCS
5/9.1(d)
(2006).
PRAYER
FOR
RELIEF
WHEREFORE, the Complainant, People of the State of Illinois, respectfully requests
that
this
Board grant the
following relief:
10
A.
Find that Respondent, DAVID SHULTZ, has
violated Section 9.1(d) of the Act,
415 ILCS 5/9.1(d)
(2006),
40 CFR 61.145(c) and 40 CFR 61.150;
B.
Order the
Respondent
to
cease and desist from further
violations of
the Act and
associated regulations;
C.
Assess against the Respondent a
civil penalty of fifty thousand dollars
($50,000.00)
allowed for each of the violations of the
Act and an additional penalty of ten
thousand
dollars ($10,000.00)
for each day during which each violation has
continued thereafter;
D.
Award the
Complainant its
costs
in this proceeding, including
attorneys’
fees and
expert
witness fees
and costs; and
E.
Grant
such other relief as the Board may
deem appropriate.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex
ref. LISA MADIGAN,
Attorney
General of the
State of
Illinois
MATTHEWJ. DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
KRISTEN
LAUGHRIDGE
GALE
500
South
Second Street
Springfield, Illinois
62706
217/782-9031
Dated:
March 30,
2009
11