BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
)
by LISA MADIGAN, Attorney General
)
of the State of Illinois,
)
)
Complainant,
)
v.
)
PCB No.
(Enforcement
-
Air)
MICK MORFEY, individually, and
WILLIAM KNAUER, individually,
1
Respondents.
NOTICE OF ELECTRONIC FILING
TO:
Mick Morfey
William Knauer
9734 Route 84 South
9885 Prairie St.
Savanna, IL 61074
Walker Edition
Savanna, IL 6 1074
PLEASE TAKE NOTICE that today, June 15,2007, I have filed with the Office of the
Clerk of the Illinois Pollution Control Board by electronic filing the following Complaint a true
and correct copy of which is attached and hereby served upon you.
Pursuant to 35
Ill. Adm. Code 103.204(f), I am required to state 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 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.
NOTIFICATION
YOU ARE HEREBY NOTIFIED that financing may be available through the Illinois
Environmental Facilities Financing Act (20 ILCS 35 1511
et seq.)
to correct the alleged pollution.
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN, Attorney General
of the State of Illinois
BY:
fa
A(&,&&
STEMEN
J. WVESTER
Assistant ~ttoke~
General
Environmental Bureau
69 W. Washington St., Suite 1800
Chicago, Illinois 60602
(3
12) 8 14-2087
Date: June 15,2007
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS
by LISA
MADIGAN, Attorney General
of the State of Illinois,
Complainant,
v.
,
MICK MORFEY, individually, and
WILLIAM KNAUER, individually,
Respondents.
)
)
PCB No.
(Enforcement
-
Air)
)
)
COMPLAINT
Complainant, People of the State of Illinois, by LISA MADIGAN, Attorney General of
the State of Illinois, on her own motion and at the request of the Illinois Environmental
Protection Agency, complains of Respondents, MICK MORFEY, individually, and WILLIAM
KNAUER, individually, as follows:
COUNT I
AIR POLLUTION
1.
This Count is brought 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 at the
request of the Illinois Environmental Protection Agency (
"Illinois EPA"), pursuant to Section 3 1
of the Illinois Environmental Protection Act (
"Act"), 4 15 ILCS 513 1 (2004).
2.
The Illinois EPA is an administrative agency of the State of Illinois, created
pursuant to Section
4 of the Act, 41 5 ILCS 514 (2004), and charged, inter alia, with the duty of
enforcing the Act.
3.
At all times relevant to this Complaint, Respondent Mick Morfey was and is an
Illinois resident.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
4.
At all times relevant to this Complaint, Respondent William Knauer was and is an
Illinois resident.
5.
On or before January 13,2006, on a date better known to Respondents, Mick
Morfey retained William Knauer to remove and dispose of asbestos
-containing siding material,
asbestos
-containing pipe covering, scrap metal, and waste material located at barracks buildings
266 and 267, situated within the former Savanna Army Depot, Savanna, Carroll County, Illinois
(
"Site"), prior to the planned demolition of each barracks building.
6.
On or before January 13,2006, on a date or dates better known to Respondents,
William Knauer removed asbestos
-containing transite siding shingles located on at least one
exterior wall of barracks building 267, and deposited dry friable asbestos
-containing waste and
refuse within an open dumpster located at the Site.
7.
On January 13,2006, the Illinois EPA observed the presence of dry broken and
crushed asbestos
-containing transite siding shingles and waste resulting from open burning
activities near barracks buildings 266 and 267.
8.
On January 17,2006, the Illinois EPA inspected the Site. At that time, there was
broken, crushed, dry, asbestos
-containing transite material next to barracks building 267 resulting
from the removal of approximately 480 linear feet of asbestos
-containing transite siding located
on at least one exterior wall of building 267.
9.
Also on January 17,2006, the Illinois EPA inspector observed broken, dry,
suspect asbestos
-containing magblock pipe insulation, floor tile, and mastic at various locations
within building 267 and in an open dumpster adjacent to the building.
10.
Also on January 17,2006, the Illinois EPA inspector observed suspect
asbestos-
containing pipe insulation that had been removed from within barracks building 266. Refuse
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
from building 266, which included but was not limited to wooden doors removed from the
building, was open burned near the dumpster.
1 1.
On or before January 17,2006, Respondents engaged in waste disposal activities
within at least one barracks building by sweeping dry asbestos
-containing pipe insulation and
debris located on the floor and depositing the material in the open dumpster.
12.
Regulated asbestos containing material (
"RACM) includes friable asbestos
material, which is any material containing more than 1 percent asbestos that, when dry, can be
crumbled, pulverized, or reduced to powder by hand pressure as defined in Section 6 1.14 1 of
Title 40 of the Code of Federal Regulations, 40 C.F.R. 61.141.
13.
On January 17,2006, the Illinois EPA inspector conducted friability testing on the
dry, suspect asbestos
-containing pipe insulation, transite siding, canvas wrap, floor tile, and floor
tile mastic, from within and adjacent to barracks buildings 266 and 267, and the open dumpster
located at the Site and determined that the dry suspect asbestos
-containing materials could be
crumbled, pulverized, or reduced to powder by hand pressure.
14.
On January 17,2006, the Illinois EPA collected eight samples of dry, suspect
asbestos
-containing pipe insulation, transite siding, canvas wrap, floor tile, and floor tile mastic,
from within and adjacent to barracks buildings 266 and 267, and the open dumpster located at the
Site.
15.
Analytical testing of the eight samples revealed concentrations of chrysotile
asbestos within each sample ranging from
1
%
to 25%.
16.
The dry, suspect asbestos
-containing pipe insulation, transite siding, canvas wrap,
floor tile, and floor tile mastic, from within and adjacent to barracks buildings 266 and 267, and
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
the open dumpster located at the Site was friable asbestos material and RACM as those terms are
defined in Section
6 1.14 1 of Title 40 of the Code of Federal Regulations, 40 C.F.R. 6 1.141.
17.
RACM remained at the Site, until October 30,2006. At that time, Respondents'
contractor completed the remediation at the Site with final clearance.
18.
Pursuant to Section
112(b)(l) of the Clean Air Act ("CAA"), 42 U.S.C.
7412(b)(l) (2007), the Administrator of the United States Environmental Protection Agency
("U.S. EPA") lists asbestos as a hazardous air pollutant.
19.
Asbestos is a known human carcinogen for which there is no known safe level of
exposure.
20.
Section
9(a) of the Act, 415 ILCS 5/9(a) (2004), provides as follows:
No person shall:
(a)
Cause or threaten or allow the discharge or emission of any contaminant
into the environment in
any'state so 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.
2 1.
Section 20 1.14 1 of the Illinois Pollution Control Board's (
"Board") Air Pollution
Regulations, 35
Ill. Adm. Code 20 1.141, provides as follows:
No person shall cause or threaten or allow the discharge or emission of
any 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 of this
Chapter.
. . .
22.
Section 3.1 15 of the Act, 41 5 ILCS 513.1 15
(2004), provides the following
definition:
"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
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
property, or to unreasonably interfere with the enjoyment of life or
property.
23.
Section 3.165 of the Act, 4 15 ILCS 513.165
(2004), provides the following
definition:
"Contaminant" is any solid, liquid, or gaseous matter, any odor, or any form of
energy, from whatever source.
24.
Asbestos is a
"contaminant" as that term is defined by Section 3.165 of the Act,
41 5 ILCS 513.165 (2004).
25.
Section 3.3 15 of the Act, 41 5 ILCS 513.3 15
(2004), 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.
26.
Mick Morfey is a
"person" as that term is defined in Section 3.3 15 of the Act, 41 5
ILCS 513.3 15 (2004).
27.
William Knauer is a
"person" as that term is defined in Section 3.3 15 of the Act,
4 15 ILCS 513.3 15 (2004).
28.
On or before January 13,2006 through at least October 30,2006, on dates better
known to Respondents, by improperly disturbing, handling and disposing of dry, friable RACM,
the Respondents caused, threatened or allowed the discharge or emission of asbestos, a
contaminant that is a known human carcinogen for which there is no known safe level of
exposure, into the environment.
29.
By causing, threatening or allowing the discharge or emission of a contaminant
into the environment, Respondents caused or tended to cause air pollution in Illinois.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
30.
By causing or tending to cause air pollution in Illinois, Respondents violated
Section
9(a) of the Act and Section 201.141 of the Board's Air Pollution Regulations.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individually, on this Count
I:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section
9(a) of the Act, and Section
201
.I41 of the Board's Air Pollution Regulations;
3.
Ordering the Respondents to cease and desist from any further violation of
Section
9(a) of the Act and Section 201.141 of the Board's Air Pollution Regulations;
4.
Assessing against Respondents, pursuant to Section 42(a) of the Act, a civil
penalty of Fifty Thousand Dollars ($50,000.00) for each and every violation of Section
9(a) of
the Act and Section 201.141 of the Board's Air Pollution Regulations, with an additional
penalty of Ten Thousand Dollars ($1 0,000.00) for each day of violation;
5.
Assessing all costs against Respondents pursuant to Section
42(f) of the Act,
including attorney, expert witnesses, 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.
COUNT
I1
FAILURE TO INSPECT AND TO SUBMIT COMPLETE AND ACCURATE
NOTIFICATION OF DEMOLITION AND RENOVATION
1
-22. Complainant realleges and incorporates by reference herein paragraphs 1 through
19 and 25 through
27 of Count I as paragraphs 1 through 22 of this Count 11.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
23.
Section 9.1 (d) of the Act, 41 5 ILCS
51 9.1 (d) (2004), provides as follows:
d)
No person shall:
1.
Violate any provisions of Sections 1 1
1, 1 12, 165, 173 of the Clean
Air Act, as now or hereafter amended, or federal regulations
adopted pursuant thereto.
24.
Section
112(d)(l) of the Clean Air Act ("CAY), 42 U.S.C. 7412(d)(l) (2007),
titled, Emission Standards, provides, in pertinent part, as follows:
1.
The Administrator shall
promulgate regulations establishing emission
standards for each category or subcategory of major sources and area
sources of hazardous air pollutants listed for regulation.
. . .
25.
'
Section 1 12(h)(l) of the CAA, 42 U.S.C. 7412(h)(l) (2007), titled, Work Practice
Standards and Other
~equirements, provides in pertinent part as follows:
1.
For the purposes of this section, if it is 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, operation
standard, or combination thereof, which in the
~dministrator's judgment is
. .
consistent with the provisions of subsection (d) or (f) of this section.
. . .
26.
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, 42 U.S.C. 7412 (2007), the U.S. EPA
adopted National Emissions Standards for Hazardous Air Pollutants (
"NESHAP"), including
asbestos, at 40 C.F.R. Part 61, Subpart
M ('NESAHP for asbestos").
27.
Section 61.141 of the NESHAP for asbestos, 40 C.F.R. 61.141, 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 A of this part.
Adequately
wet
means sufficiently mix or penetrate with liquid to prevent the
release of particulates. If visible emissions are observed coming from
asbestos-
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
containing material, then that material has not been adequately wetted. However,
the absence of visible 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.
Category I nonfriable asbestos containing material
(ACM) means asbestos-
containing packings, gaskets, resilient floor covering, and asphalt roofing
products continuing more than 1 percent asbestos as determined using the method
specified in appendix
E, subpart E, 40 C.F.R. 763, section 1, Polarized Light
Microscopy.
Category 11 nonfriable ACM
means any material, excluding Category I
nonfriable ACM, containing more than 1 percent asbestos as determined
using the methods specified in appendix A, subpart F, 40 C.F.R. part 763,
section 1, Polarized Light Microscopy that, when dry, cannot be crumbled,
pulverized, or reduced to powder by hand pressure.
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.
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 as a residential cooperative, but excluding residential
buildings having four or fewer dwelling units); any ship; and any active or
inactive 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 subject to this subpart is not
excluded, regardless of its current use or function.
Friable asbestos material
means any material containing more than 1
percent asbestos as determined using the method specified in appendix A,
subpart F, 40 C.F.R. 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 than point counting by polarized light microscopy (PLM),
verify the asbestos content by point counting using PLM.
Installation
means any building or structure or any group of buildings or
structures at a single demolition or renovation site that are under the control of the
same owner or operator (or owner or operator under common control).
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
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, (b) Category
I nonfriable ACM that has become friable,
(c) Category
I nonfriable ACM that will be or has been subjected to
sanding, grinding, cutting or abrading, or (d) Category
I1 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.
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.
28.
Barracks buildings 266 and 267 at the Site are part of an
"installation" as that
term is defined in Section 61.141 of the NESHAP for asbestos, 40 C.F.R. 6 1.14 1.
29.
Respondents' removal of asbestos from barracks buildings 266 and 267 at the Site
constitutes a
"renovation" prior to commencing a "demolition" as those terms are defined in
Section 61.141 of the NESHAP for asbestos, 40 C.F.R. 61.141.
30.
Respondent Mick Morfey controlled, supervised, and participated in asbestos
removal activities at the Site in preparation for the demolition of each structure' and is therefore
an
"operator" of a planned demolition and renovation activity as defined in Section 61 .I41 of the
NESHAP for asbestos, 40 C.F.R. 61.141.
3
1.
Respondent William Knauer controlled and participated in asbestos removal
activities at the Site in preparation for the demolition of each structure and is therefore an
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
"operator" of a planned demolition and renovation activity as that term is defined in Section
61.141 of the NESHAP for asbestos, 40 C.F.R. 61.141.
32.
The material disturbed by Respondents during asbestos removal and disposal
activities contained more than 1% chrysotile asbestos, was capable of being crumbled,
pulverized, or reduced to powder by hand pressure, and is therefore
"friable asbestos material" as
that term is defined in Section 6 1.14 1 of the NESHAP for asbestos, 40 C.F.R. 61.14 1.
33.
The transite siding, floor tile, and floor tile mastic that was removed with spud
bars that broke
-up and dislodged the material and thereby rendered it friable and the dry, friable
material removed from barracks buildings 266 and 267 at the Site are.
"RACM as that term is
defined in Section 61.141 of the NESHAP for asbestos, 40 C.F.R. 61.141.
34.
Section
61.145(a) of the NESHAP for asbestos, 40 C.F.R. 61.145(a), is
enforceable through Section 9.1 (d) of the Act, 4 15 ILCS
519.1 (d),' titled Standard for demolition
and renovation: and provides, 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 I1 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
RACM as follows:
(i)
At least 80 linear meters (260 linear feet) on pipes or a least
15 square meters (1 60 square feet) on other facility
components, or
(ii)
At least 1 cubic meter (35 cubic feet) off facility
components where the length or area could not be
measured previously.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
35.
Respondents removed approximately 480 linear feet of regulated asbestos-
containing transite siding located on one exterior wall of the building 267. Because the amount
of RACM removed was more than either 260 linear feet, 160 square feet
andlor 35 cubic feet, the
project is subject to notification and asbestos emission control requirements specified by
Sections
61.145(b) and (c) of the NESHAP for asbestos, 40 C.F.R. 61.145(b) and (c).
36.
Section
61.145(b) of the NESHAP for asbestos, 40 C.F.R. 61.145(b), is
enforceable through Section
9.l(d) of the Act, 41 5 ILCS 5/9.l(d), and provides, in pertinent part,
as follows:
(b)
NotiJication 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.
(3)
Postmark or deliver the notice as follows:
(i)
At least 10 working days before asbestos stripping
or removal work or any other activity begins (such
as site preparation that would break up, dislodge or
similarly disturb asbestos material), if the operation
is described in paragraphs (a)
(1) and (4) (except
(a)(4)(iii) and (a)(4)(iv)) of this section. If the
operation is as described in paragraph
(a)(2) of this
section, notification is required 10 working days
before demolition begins.
37.
Respondents failed to thoroughly inspect the facility for the presence and location
of asbestos-containing material (
"ACM") prior to commencing asbestos removal and disposal
activities at the Site, as required by Section
61.145(a) of the NESHAP for asbestos, 40 C.F.R.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
38.
By failing to thoroughly inspect the facility for the presence and location of ACM
prior to commencing asbestos removal and disposal activities at the Site, Respondents violated
Section
61.145(a) of the NESHAP for asbestos, 40 C.F.R. 6 1.145(a), thereby violating Section
9.1 (d) of the Act, 4 15 ILCS 519.1 (d).
39.
Respondents failed to notify the Illinois EPA of scheduled asbestos removal
'activities at the Site, at least 10 working days prior to commencing such activities, as required by
Section
61.145(b) of the NESHAP for asbestos, 40 C.F.R. 61.145(b).
40.
By failing to notify the Illinois EPA of scheduled asbestos removal activities at
the Site, at least 10 working days prior to commencing such activities, Respondents violated
Section
61.145(b) of the NESHAP for asbestos, 40 C.F.R. 61.145(b), thereby violating Section
9.1 (d) of the Act, 4 15 ILCS 519.1 (d).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individually, on this Count
11:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents violated Section 9.l(d) of the Act and Section 61.145
(a) and (b) of the NESHAP for asbestos;
3.
Ordering the Respondents to cease and desist from any further violation of
Section
9.1(d) of the Act and Section 61.145 (a) and (b) of the NESHAP for asbestos;
4.
Assessing against Respondents, pursuant to Section
42(a) of the Act, a civil
penalty of Fifty Thousand Dollars ($50,000.00) for each and every violation of Section 9.1 (d) of
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
the Act and Section 61.145 (a) and (b) of the NESHAP for asbestos with an additional penalty of
Ten Thousand Dollars ($10,000.00) for each day of violation;
5.
Assessing all costs against Respondents pursuant to Section
42(f) of the Act,
including attorney, expert witnesses, 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.
COUNT I11
FAILURE TO REMOVE AND CONTAIN RACM
IN COMPLIANCE WITH NESHAP REQUIREMENTS
1-35. Complainant realleges and incorporates by reference herein paragraphs 1 through
19 and
25'through 27 of Count I, and paragraphs 23 through 35 of Count 11, as paragraphs 1
through
35 of this Count 111.
36.
Section 61.145(~)(1), (c)(2), (c)(6) and (c)(8) of the NESHAP for asbestos, 40
C.F.R.
61.145(~)(1), (c)(2), (c)(6) and (c)(8) (2004), provides, in pertinent part, as follows:
(c)
Procedures for asbestos emission control. 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:
(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
. . .
(2)
When a facility component that contains, is covered with,
or is coated with RACM is being taken out of the facility as
a unit or in sections:
(i)
Adequately wet all RACM exposed during cutting
and disjoining operations; and
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
(ii)
Carefully lower each unit or section to the floor and
to ground level, not dropping, throwing, sliding, or
otherwise damaging or disturbing the RACM.
(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
5
61.150; and
(ii)
Carefully lower the material to the ground and
floor, not dropping, throwing, sliding, or otherwise
damaging or disturbing the material.
(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.
. . :
37.
Section 61.150(a)(l) of the NESHAP for asbestos, 40 C.F.R. 61.150(a)(l),
provides in pertinent part as follows:
Each owner or operator of any source covered under the provisions of
5.5
61.144,
6 1.145, 6 1.146, and 6 1.147 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 generated
by the source, or use one of the emission control and waste
treatment methods specified in paragraphs (a)
(I) through (4) of
this section.
(1)
Adequately wet asbestos
-containing waste material as
follows:
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
(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)(l)(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 C.F.R.
1910.1001(j)(4) or
1926.1 10 1
(k)(8). The labels shall be printed in
letters of sufficient size and contrast so as 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.
38.
Respondents failed to properly remove all RACM from barracks buildings
266 and 267 at the Site before commencing planned renovation activities, which broke
up, dislodged and similarly disturbed the material, as required by Section
61.145(~)(1) of
the NESHAP for asbestos, 40 C.F.R.
61.145(~)(1).
39.
By failing to properly remove all RACM from barracks buildings 266 and
267 at the Site before commencing planned renovation activities, which broke up,
dislodged and similarly disturbed the material, Respondents violated Section
61.145(~)(1)
of the NESHAP for asbestos, 40 C.F.R. 61.145(c)(l), thereby violating Section 9.1(d) of
the Act, 4'1 5 ILCS 519.1 (d) (2004).
40.
Respondents failed to adequately wet all RACM and prevent damage or
disturbance to the RACM during cutting or disjoining operations at barracks buildings
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
266 and 267 at the Site, as required by Section 61.145(~)(2) of the NESHAP for asbestos,
40 C.F.R.
61.145(~)(2).
4 1.
By failing to adequately wet all RACM and prevent damage or
disturbance to the RACM during cutting or disjoining operations at barracks buildings
266 and 267, Respondents violated Section
61.145(~)(2) of the NESHAP for asbestos, 40
C.F.R.
61.145(~)(2), thereby violating Section 9.1 (d) of the Act, 41 5 ILCS 519.1 (d)
(2004).
42.
Respondents failed to adequately wet and maintain wet all RACM and
regulated asbestos
-containing waste material at the Site until collected and contained in
preparation for disposal to a site permitted to accept such waste, as required by Section
61.145(~)(6) of the NESHAP for asbestos, 40 C.F.R.
61.145(~)(6).
43.
By failing to adequately wet and maintain wet all RACM and regulated
asbestos
-containing waste material at the Site until collected and contained in preparation
for disposal to a site permitted to accept such waste, Respondents violated Section
61.145(~)(6) of the NESHAP for asbestos, 40 C.F.R. 61.145(~)(6), thereby violating
Section 9.1 (d) of the Act, 41 5 ILCS 519.1 (d) (2004).
44.
Respondents failed to have at least one representative on site trained in the
provisions of the NESHAP for asbestos and the means of complying with them, as
required by Section
61.145(~)(8) of the NESHAP for asbestos, 40 C.F.R. 61.145(~)(8).
45.
By failing to have at least one representative on site trained in the
provisions of the NESHAP for asbestos and the means of complying with them,
Respondents violated Section
61.145(~)(6) of the NESHAP for asbestos, 40 C.F.R.
6
1.145(~)(6), thereby violating Section 9.1 (d) of the Act, 4 15 ILCS 519.1 (d) (2004).
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
46.
Respondents failed to adequately wet and keep wet, containerize, and label
all asbestos
-containing waste material at the Site, thereby causing or allowing the
discharge of visible emissions to the outside air.
47.
By failing to adequately wet and keep wet, containerize, and label all
asbestos-
containing waste material at the Site, thereby causing or allowing the discharge of visible
emissions to the outside air, Respondents caused or allowed the discharge of visible emissions to
the outside air in violation of 40 C.F.R. 61.1
50(a)(l)(iii), (iv) and (v), thereby violating Section
9.1 (d) of the Act, 4 15 ILCS
519.1 (d) (2004).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individually, on this Count
111:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents violated Section 9.1 (d) of the Act and Sections
61.145(~)(1), (c)(2), (c)(6) and (c)(8) and 61.150(a)(l)(iii), (iv) and (v) of the NESHAP
for asbestos;
3.
Ordering the Respondents to cease and desist from any further violation of
Section 9.1 (d) of the Act and Sections
61.145(c)(l), (c)(2), (c)(6) and
(c)(8)
and
61.150(a)(l)(iii), (iv) and (v) of the NESHAP for asbestos;
4.
Assessing against Respondents, pursuant to Section
42(a) of the Act, a
civil penalty of Fifty Thousand Dollars ($50,000.00) for each and every violation of
Section 9.1 (d) of the Act and Sections
61.145(c)(l), (c)(2), (c)(6) and (c)(8) and
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
61.150(a)(l)(iii), (iv) and (v) of the NESHAP for asbestos, with an additional penalty of
Ten Thousand Dollars ($1 0,000.00) for each day of violation;
5.
Assessing all costs against Respondents pursuant to Section
42(f) of the
Act, including attorney, expert witnesses, 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.
COUNT
IV
IMPROPER DISPOSAL OF REGULATED ASBESTOS-CONTAINING MATERIALS
1-35. Complainant realleges and incorporates by reference herein paragraphs 1 through
19 and 25 through 27 of Count I, and paragraphs 23 through 35 of Count
11, as paragraphs 1
through 35 of this Count IV.
36.
Section
61.150(b) of the NESHAP for asbestos, 40 C.F.R. 6 1.150(b), provides as
follows:
(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
9
61.154, or
(2)
An EPA-approved site that converts RACM and asbestos-
containing waste material into nonasbestos (asbestos
-free) material
according to the provisions of
5
6 1.155.
37.
Section 61.141 of the NESHAP for asbestos, 40 C.F.R. 61.141, provides
the following definitions:
Asbestos-containing waste materials
means mill tailings or any waste that
contains commercial asbestos and is generated by a source subject to the
provisions of this 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 asbestos
including disposable equipment and clothing.
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
38.
The RACM removed from barracks buildings 266 and 267 at the Site
during the asbestos removal activities, as well as materials contaminated with asbestos
through contact with RACM, constituted
"asbestos-containing waste material" as that
term is defined in Section 61.14 1 of the NESHAP for asbestos, 40 C.F.R. 6 1.14 1.
39.
Respondents failed to transport to a waste disposal site or Illinois
EPA-
approved site that converts RACM and asbestos-containing waste material into
nonasbestos material and deposit as soon as practical all asbestos
-containing waste
material generated during asbestos removal activities at the Site.
40.
By failing to transport to a waste disposal site or Illinois EPA
-approved site that
converts RACM and asbestos
-containing waste material into nonasbestos material and deposit as
soon as practical all asbestos
-containing waste material generated during asbestos removal
activities at the Site, Respondents violated Section
9.l(d) of the Act, 41 5 ILCS 5/9.l(d) (2004),
and Section 6 1.150(b) of the NESHAP for asbestos, 40 'c.F.R. 6 1.150(b).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individually, on this Count IV:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein
2.
Finding that Respondents have caused or allowed violations of Section
9.l(d) of
the Act and Section
61.150(b) of the NESHAP for asbestos;
3.
Ordering the Respondents to cease and desist from any further violation of
Section 9.1
(d) of the Act and Section 6 1.150(b) of the NESHAP for asbestos;
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
4.
Assessing a civil penalty of Fifty Thousand Dollars ($50,000.00) against
Respondents for each and every violationof Section 9.1 (d) of the Act and Section
6
1.150(b) of
the NESHAP for. asbestos, with an additional penalty of Ten Thousand Dollars ($10,000.00) for
each day of violation;
5.
Assessing all costs against Respondents pursuant to Section
42(f) of the Act,
including attorney, expert witnesses, 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.
COUNT
V
FAILURE TO PAY ASBESTOS FEE
1-35.
Complainant realleges and incorporates by reference herein paragraphs 1 through
,
19 and 25 through 27 of Count I, and paragraphs 23 through 35 of Count 11, as paragraphs 1
through 35 of this Count
V.
36.
Section 9.13 of the Act, 41 5 ILCS 5/9.13(a) and (b)(2004), provides, in pertinent
part, as follows:
(a)
For any site for which the owner or operator must file an original 10-day
notice of intent to renovate or demolish pursuant to 40 C.F.R.
ยง61.145(b)
(part of the federal asbestos National Emission Standard for Hazardous
Air pollutants or NESHAP), the owner or operator shall pay to the Agency
with the filing of each 10-day Notice a fee of $150.
(b)
If demolition or renovation of a site has commenced without proper filing
of the 10-day Notice, the fee is double the amount otherwise due. This
doubling of the fee is in addition to any other penalties under this Act, the
federal NESHAP, or otherwise, and does not preclude the Agency, the
Attorney General, or other authorized persons from pursuing an
enforcement action against the owner or operator for failure to file a
10-day Notice prior to commencing demolition or renovation activities.
37.
Respondents failed to pay the required fee provided by Section
9.13(a) of the Act,
415 ILCS
5/9.13(a) (2004).
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
38.
Respondents began asbestos removal activities, on or about January 13,2006, on
a date or dates better known to Respondents, without filing the requisite notice of scheduled
demolition and renovation activities required by the NESHAP for asbestos. Therefore, an
asbestos fee payment of $300.00 is required, pursuant to Section
9.13(b) of the Act, 41 5 ILCS
5/9.13(b).
39.
On February 9,2006, Respondent Mick Morfey submitted to the Illinois EPA
an
original notice informing the Illinois EPA of asbestos removal activities at the Site with an
asbestos fee payment of $300.00.
40.
Respondents, by failing to timely pay the 10
-day Notice fee violated Section
9.13(a) of the Act 41 5 ILCS 5/9.13(a) (2004).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individually, on this Count
V:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding that Respondents have violated Section
9.13(a) of the Act;
3.
Ordering the Respondents to cease and desist from any further violation of
Section
9.13(a) of the Act;
4.
Assessing a civil penalty of
Fifty Thousand Dollars ($50,000.00) against the
Respondents for the violation of Section
9.13(a) of the Act and an additional civil penalty of Ten
Thousand Dollars ($1 0,000.00) for each day of violation;
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
5.
Assessing all costs against Respondents pursuant to Section 42(f) of the Act,
including attorney, expert witnesses, 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.
COUNT
VI
OPEN BURNING OF REFUSE
1-22.
Complainant realleges and incorporates by reference herein paragraphs 1 through
19 and 25 through 27 of Count I as paragraphs 1 through 22 of this Count
VI.
23.
Section
9(c) of the Act, 4 15 ILCS 51 9(c) (2004) provides, in pertinent part, as
follows:
No person shall
. . .
(c)
Cause or allow the open burning of refuse
. . .
24.
.
Section 3.385 of the Act, 41 5 ILCS 513.385 (2004), provides, in pertinent part, as
follows:
"Refuse" means waste.
25.
Section 3.535 of the Act, 415 ILCS 513.535
(2004), provides, in pertinent part as
follows:
"Waste" means any'garbage
. . .
or other discarded material, including any
solid, liquid, semi
-solid, or contained gaseous material resulting from
industrial, commercial, mining and agricultural operations, and from
community activities.
. . .
26.
Wooden doors from barracks building 266, which were removed from the
building, constitute
"waste" and "refuse" as those terms are defined by the Act in 41 5 ILCS
513.385 and 3.535.
27.
On or about January 13,2006, on a date better known to Respondents,
Respondents caused or allowed the open burning of refuse, including wooden doors, during
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
asbestos removal activities at the Site to facilitate waste disposal activity, in violation of Section
9(c) of the Act, 41 5 ILCS 5/9(c) (2004).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, respectfully
requests that the Board enter an order against Respondents, MICK MORFEY, individually, and
WILLIAM KNAUER, individuall
y
, on this Count VI:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer the allegations herein;
2.
Finding Respondents have violated Section
9(c) of the Act, 41 5 ILCS 5/9(c);
3.
Ordering the Respondents to cease and desist from any further violation of
Section
9(c) of the Act, 41 5 ILCS 5/9(c);
4.
Assessing a civil penalty for Fifty Thousand Dollars ($50,000.00) against the
Respondents for each violation of Section
9(c) of the Act and an additional civil penalty of Ten
Thousand Dollars ($1 0,000.00) for each day of violation;
5.
Assessing all costs against Respondents pursuant to Section
42(f) of the Act,
including attorney, expert witnesses, and consultant fees expended by the State in its pursuit of
this action; and
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
6.
Granting such other relief as this Court deems appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS,
by LISA
MADIGAN,
Attorney General of the State of Illinois,
MATTHEW
J. DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
By:
RoseMarie Cazeau, Chief
Environmental Bureau
.
Assistant Attorney General
Of Counsel:
STEPHEN
J. SYLVESTER
Assistant Attorney General
Environmental
~ureau
69 W. Washington St., Suite 1800
Chicago, IL 60602
Tel:
(3
12) 814-2087
Fax: (3
12) 8 14-2347
Email: ssylvester@atg.state.il.us
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
CERTIFICATE OF SERVICE
I, Stephen J. Sylvester, an Assistant Attorney General, do certify that a true and correct
copy of the Complaint and Notice of Filing were sent by certified mail with return receipt
requested to the persons listed on the Notice of Filing on June
15,2007.
BY:
STEMEN
s&
J. s
Electronic Filing, Received, Clerk's Office, June 15, 2007
* * * * * * PCB 2007-144 * * * * * *
