NOTICE OF FILING

BEFORE THE ILLINOIS POLLUTION CONTROL BOARDR E C E

~V ~

CLERK’S OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

by LISA MADIGAN, Attorney

)

General ofthe State ofIllinois

)

STATE OF ILLINOIS

)

Pollution Control Board

Complainant,

)

) PCBO4-162

)

ASBESTOS CONTROL AND

)

ENVIRONMENTAL SERVICES

)

(Enforcement)

an Illinois corporation,

)

Respondent.

)

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on November 16, 2004, the People ofthe State ofIllinois

filed with the Illinois Pollution Control Board Complainant’s Motion to Strike or Dismiss

Respondent’s Defenses, true and correct copies of which are attached and hereby served upon

you.

Respectfully submitted,

LISA MADIGAN

Attorney General

State ofIllinois

BY:

T~&ta~L

BRIDGE~M. CARLSON

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-0608

THIS FILING IS SUBMITI’ED ON RECYCLED PAPER

SERVICE LIST

Mr. Chris Pressnall, Esq.

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Mr. Norman V. Chimenti, Esq.

Martin, Craig, Chester & Sonnenschein

2215 York Road, Suite

550

Oak Brook, Illinois 60523

Mr. Bradley P. Halloran, Esq.

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

REC~VEDCLERK’S

OFFICE

PEOPLE OF THE STATE OF ILLINOIS,

)

by LISA MADIGAN, Attorney

)

NOV 162004

General ofthe State ofIllinois

)

STATE OF ILLINOIS

PolIut~onControl Board

Complainant,

)

PCBO4-162

)

ASBESTOS CONTROL AND

)

ENVIRONMENTAL SERVICES

)

(Enforcement)

an Illinois corporation,

)

Respondent.

)

COMPLAINANT’S

MOTION TO

STRIKE

OR DISMISS

RESPONDENT’S AFFIRMATIVE DEFENSES

Complainant, PEOPLE OF THE STATE OF IJILLINOIS,

rel.

LISA MADIGAN,

Attorney General ofthe State ofIllinois, pursuant to Section 101.506 ofthe Board’s Procedural

Regulations and Section 2-615 ofthe Illinois Code ofCivil Procedure, moves for an order

striking or dismissing the defenses ofRespondent, ASBESTOS CONTROL AND

ENVIRONMENTAL SERVICES CORPORATION (“ACES”). In support ofits motion,

Complainant states as follows:

INTRODUCTION

On March 17, 2004 Complainant, the People ofthe State of Illinois, filed a three-count

Complaint against Respondent ACES alleging violations of the Illinois Environmental

Protection Act (“Act”), Pollution Control Board (“Board”) regulations, and the Code ofFederal

Regulations concerning Respondent’s removal ofasbestos containing material during demolition

and renovation at a warehouse located at 816 West 47~Place, Chicago, Cook County, Illinois

(“facility”).

Specifically, Complainant alleged that Respondent caused or threatened to allow the

discharge of contaminants into the environment so as to cause ortend to cause air pollution

thereby violating Section 9(a) of the Act and Section 201.141 of the Board Air Pollution

Regulations, 35 111. Adm. Code 201.141 (Count 1); failed to follow proper emission control

procedures by failing to adequatelywet all asbestos containing material (“ACM”) in accordance

with Section 9.1(d)(1) ofthe Act and Section

61.145(c)(3)

and (c)(6) ofthe United States

Environmental Protection Agency’s (“USEPA”) NESHAP for asbestos (Count II); and failed to

dispose ofthe ACM properly when Respondent failed to properly seal the disposal bags stored in

a dumpster thereby violating Section 9.1(d)(1) ofthe Act and 40 CFR 61.150(a) (Count ifi).

On October 14, 2004, the Respondent mailed to be filed its answer and two affirmative

defenses to the Complaint. Complainant moves herein to strike or dismiss all ofthe defenses for

the reasons outlined below.

LEGAL STANDARD

An affirmative defense is a:

Defendant’s (Respondent’s) assertion raising new facts and

arguments that, if true, will defeat the plaintiff’s orprosecution’s

claim, even if all allegations in the complaint are true. Black’s

Law Dictionary at 431

(7th

Ed. 1999).

An affirmative defense gives color to the opposing party’s claim and then asserts a new matter by

which the apparent right is defeated.

Ferris Elevator Company, Inc. v. Neffco, Inc.,

285

lll.App.3d 350, 354, 674 N.E.2d 449, 452 (3rd Dist. 1996). Tn other words, an affirmative

defense confesses or admits the cause ofaction alleged by Complainant, then seeks to avoid it by

asserting a new matter not contained in the complaint and answer.

Worner Agency, Inc. v.

Doyle,

121 lll.App.3d 219, 222-223,

459

N.E.2d 633,

635-636

(4th Dist. 1984).

The facts in an affirmative defense must be pled with the same specificity as required by

Complainant’s pleading to establish a cause ofaction.

International Insurance Co. v. Sargent &

Lundy,

242 Ill. App. 3d 614, 630, 609 N.E.2d 842, 853 (1st Dist. 1993).

ARGUMENT

Affirmative Defense 1

Affirmative defense 1 states in sum:

Respondent was not obligated to comply with Section 61.145

(c)(2)(i) and/or (c)(3) ofUSEPA’s NESHAP because the

temperature at the point ofwetting was below 32 degrees

Fahrenheit.

This affirmative defense is improvident. Although NIESHAP does allow the suspension

ofnormal wetting procedures when the temperature falls below 32 degrees Fahrenheit, it

imposes specific conditions regarding recordkeeping-of the temperatures to provide verification.

Part 61 ofthe NESHAP Subpart M, National Emission Standard forAsbestos, Section 61.145,

40 CFR

61.145(c)(7),

states in pertinent part as follows:

(7) When the temperature at the point of wetting is below 0

C (32 F):

(i) The owner or operator need not comply with paragraph (c)(2)(i) and the

wetting provisions ofparagraph (c)(3) ofthis section.

(ii) The owner or operator shall remove facility components containing, coated

with, or covered with RACM as units or in sections to the maximum extent

possible.

(iii) During periods when wetting operations are suspended due to freezing

temperatures, the owner or operator must record the temperature in the area

containing the facility components at the beginning, middle, and end ofeach

workday and keep daily.temperature records available for inspection by the

Administrator during normal business hours at the demolition orrenovation site.

The owner or operator shall retain the temperature records for at least 2 years.

A copy ofthe NESHAP Subpart M, National Emission Standard for Asbestos, Section 61.145

regulation is provided as Attachment A.

The Respondent has failed to provide any supporting material to sustain a claim of

freezing temperatures. In contrast, the national weather service indicates that the temperatures

were between 54 and 34 degrees in Chicago, on December 19, 2002, the date ofthe alleged

violations. At noon on December 19, 2002 the recorded temperature was 43 degrees. This

information is in direct contrast to the affirmative defense alleged by Respondent.

Additionally, NESHAP provisions are clear when an allowance is made to suspend

wetting ofACM due to freezing temperatures. Under Section 61.

145(c)(7)(iii),

the regulations

plainly state that the owner or operator must record the temperature in the area containing the

facility components at the beginning, middle, and ~ ofeach workday and keep daily

temperature records available for inspection by the Administrator. The owner or operator must

retain the temperature records for at least 2 years. The Respondents have not alleged that they

recorded the temperature on December 19, 2002, nor have they provided any records attached

with their Answer in support of their assertions. This precludes Respondents from using

NESHAP Section

61.145(c)(7)

as an affirmative defense.

Finally, Respondent’s first affirmat~vedefense is unsupported by additional information.

By simply stating that freezing temperatures existed on December 19, 2004, does not invoke a

NESHAP authorized suspension ofadequate wetting procedures during ACM removal. The

Respondents halt their argument at Section

61.145(i)

and fail to apply the rest ofthe section of

NESHAP to their argument. A statute must be read as a whole, and all relevant parts must be

considered.

People v. Peco,

345 lll.App.3d 724, 731, 281 Ill.Dec. 157, 803 N.E.2d

561

(2nd

Dist. 2004). Moreover, a statute should not be read in isolation, but in the context ofthe act of

which it is a part.

People ex. rel Birkett v. City ofChicago,

202 lll.2d 36, 49, 269 Ill.Dec. 21,

779 N.E.2d 875 (2002). Because the Respondents do not incorporate all three sections ofthe

NESHAP provision allowing a suspension of wetting practice, the Respondents first affirmative

defense must fail. ~Further,the first affirmative defense is not pled with the same degree of

specificity as the Complaint. For these reasons, Respondent’s first affirmative defense should be

stricken or dismissed.

Affirmative Defense 2

Affirmative defense 2 states in sum:

The violations contained in Counts I and II, respectively, are duplicitous and

should result in a single violation.

This statement fails as an affirmative defense for two reasons. First, as stated above, an

affirmative defense admits allegations to be true, and asserts a new matter not contained in the

complaint and answer. The second affirmative defense is not a proper affirmative defense,

instead it appears to be a request to strike a count from the Complaint. It adds no new matter

which would constitute a defense, and should not be plead as an affirmative defense.

Second, Count I ofthe Complaint alleged a violation ofSection 9 ofthe Environmental

Protection Act and Illinois Pollution Control Board regulations for air pollution. Count II of the

Complaint alleges violations of Section 9.1(d) ofthe Act, the Clean Air Act (“CAA”), and the

asbestos NESHAP for the improper handling ofasbestos. Counts I and II detail two separate

violations resulting from two separate Sections ofthe Act and use separate enabling statutes.

Counts I and II are inherently different from each other. Count I alleges that because the

Respondent unsuitably strippedACM from building pipes, they caused thy friable material to be

emitted into the air, thereby causing or allowing air pollution. The suspected ACM was

laboratory tested and confirmed to be ACM. As detailedin the body ofthe Complaint, Section

9(a) ofthe Act, states that no person shall cause threaten or allow the discharge of contaminants

so as to cause air pollution. Count I stating the defendants caused air pollution is legitimately

plead, contains facts and is legally significant from Count II.

Alternatively, Count II uses the CAA and asbestos NBSHAP regulations as enabling

statutes. Count I uses nether ofthese statutes to allege violations. As stated in Count II ofthe

Complaint, the CAA promulgated work practice standards for workers handling asbestos. The

USEPA adopted NESHAP’s regulations to ensure that a hazardous air pollutant was properly

handled. In this case, the Respondent failed to adhere to the safety regulations set forth in the

asbestos NESHAP, performing the removal in such a way that friable asbestos could enter the

air. Count II alleges improperhandling ofthe ACM during removal and violation of safety

regulations. It does not allege that Respondent actually caused air pollution, which is plainly

alleged in Count I. The Illinois legislature separated these two violations in the Act. Both Act

sections begin by stating that “no person shall”, to distinguish.two separate and different

violations. Because the Illinois legislature saw fit to differentiate between the violations, they

are properly pled in two separate counts.

Finally, the second affirmative defense is not pled with.the same degree ofspecificity as

the Complaint. For these reasons, Respondent’s second affirmative defense should be stricken or

dismissed.

CONCLUSION

Respondent’s affirmative defenses have serious flaws which render them invalid. Thus,

Respondent’s affirmative defenses should be stricken or dismissed.

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN,

Attorney General ofthe

State ofIllinois,

MATTHEW J. DUNN, Chief

Environmental Enforcement!

Asbestos Litigation Division

By:

_________________

BRD(?IET M. CARLSON

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.

20th Fl.

Chicago, IL 60601

(312) 814-0608

Attorney Number: 99000

W~w

CFR

61.

145

40 C.F.R.

6 1.145

Page

CODE

FEDERAL

REGULATIONS

TITLE 40—PROTECTION OF

ENVIRONMENT

CHAPTER I--ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C--AIR PROGRAMS

PART 61--NATIONAL EMISSION

STANDARDS FOR HAZARDOUS

AIR

POLLUTANTS

SUBPART M--NATIONAL EMISSION

STANDARD

FOR ASBESTOS

Current through November 8, 2004; 69 FR 64688

61.145 Standard for demolition and renovation.

(a)

Applicability.

determine

which

requirements of paragraphs (a), (b), and (c) of this

section apply to the owner or operator of. a

demolition or renovation activity and prior to the

commencement of the demolition or renovation,

thoroughly inspect the affected facility or part of the

facility where the demolition or

renovation

operation will occur for the presence of asbestos,

including Category I and Category II nonfriable

ACM. The requirements of paragraphs (b) and (c)

of this section apply to each owner or operator of a

demolition or renovation activity, including the

removal of RACM as follows:

(1) In a facility being demolished, all the

requirements of paragraphs (b) and (c) of this

section apply, except as provided in paragraph

(a)(3) of this section, if the combined amount of

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) off

facility components where the length or area could

not be measured previously.

(2) In a facility being demolished, only the

notification requirements of paragraphs (b)(l), (2),

(3)(i) and (iv), and (4)(i) through (vii) and (4)(~x)

and (xvi) of this. section apply, if the combined

amount ofRACM is

(i) Less than 80 linear meters (260 linear feet) on

pipes and less than 15 square meters (160 square

feet) on other facility components, and

(ii) Less than one cubic meter

(35

cubic feet) off

facility components where the length or area could

not be measured previously or there is no asbestos.

(3) If the facility is being demolished under an

order of a State or local government agency, issued

because the facility is structurally unsound and in

danger of imminent collapse, only the requirements

of paragraphs (b)(1), (b)(2), (b)(3)(iii), (b)(4)

(except (b)(4)(viii)),

(b)(5),

and (c)(4) through

(c)(9) ofthis section apply.

(4) Tn 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 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, or

(ii) At least 1 cubic meter (35 cubic feet) off

facility components where the length or area could

not be measuredpreviously.

(iii) To determine whether paragraph (a)(4) of this

section applies to planned renovation operations

involving individual nonscheduled operations,

predict the combined additive amount of RACM to

be removed or stripped during a calendar year of

January 1 through December 31.

(iv) To determine whether paragraph (a)(4) of this

section applies to emergency renovation operations,

estimate the combined amount of RACM to be

removed or stripped as a result of the sudden,

unexpected event that necessitated the renovation.

(5) Owners or operators of demolition and

ATTACIIIIENT

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40 CFR

61.145

40 C.F.R.

§ 61.145

Page 2

renovation operations are exempt from the

requirements of~61.05(a), 61.07, and 61.09.

(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.

(2) Update notice, as necessary, including when the

amount of asbestos affected changes by at least 20

percent.

(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, ndtification is

required 10 working days before demolition begins.

(ii) At least 10 working days before the end of the

calendar year preceding the year for which notice is

being given for renovations described in paragraph

(a)(4)(iii) ofthis section.

(iii) As early as possible before, but not later than,

the following working day if the operation is a

demolition ordered according to paragraph (a)(3) of

this

section or, if the operation is a renovation

described in paragraph (a)(4)(iv) of this section.

(iv) For asbestos stripping or removal work in a

demolition or renovation operation, described in

paragraphs (a) (1)

and (4) (except (a)(4)(iii) and

(a)(4)(iv)) of this section, and for a demolition

described in paragraph (a)(2) of this section, that

will begin on a date other than the one contained in

the original notice, notice of the new start date must

be provided to the Administrator as follows:

(A) When the asbestos stripping or removal

operation or demolition operation covered by this

paragraph will begin after the date contained in the

notice,

(1) Notify the Administrator of the new start date

by telephone as soon as possible before the original

start date, and

(2) Provide the Administrator with a written notice

of the new start date as soon as possible before, and

no later than, the original start date. Delivery of the

updated notice by the U.S. Postal Service,

commercial delivery service, or hand delivery is

acceptable.

(B) When the asbestos stripping or removal

operation or demolition operation covered by this

paragraph will begin on a date earlier than the

original start date,

(1) Provide the Administrator with a written notice

ofthe new start date at least 10 working days before

asbestos stripping or removal work begins.

(2) .For demolitions covered by paragraph (a)(2) of

this section, provide the Administrator ~itten

notice of a new start date at least. 10 working days

before commencement of demolition. Delivery of

updated notice by U.S. Postal Service, commercial

delivery service, or hand delivery is acceptable.

paragraph begin on a date other than the date

contained in the written notice of the new start date.

(4) Includethe following in the notice:

(i) An indication of whether the notice is the

original or a revised notification.

(ii) Name, address, and telephone number of both

the facility owner and operator and the asbestos

removal contractor owner or operator.

(iii) Type of operation: demolition or renovation.

(iv) Description of the facility or affected part of

the facility including the size (square meters square

feet and number of floors), age, and present and

prior use of the facility.

(v) Procedure,

including

analytical methods,

employed to detect the presence of RACM and

Category I and Catagory II nonfriable ACM

(vi) Estimate of the approximate amount of RACM

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40 CFR

§ 61.145

40 C.F.R.

61.145

Page 3

to be removed from the facility in terms of length of

pipe in linear meters (linear feet), surface area in

square meters (square feet) on other facility

components, or volume in cubic meters (cubic feet)

if off the facility components. Also, estimate the

approximate amount of Category I and Category II

nonfriable ACM in the affected part of the facility

that will not be removedbefore demolition.

(vii) Location and street address (including

building number or name and floor or room

number, if appropriate), city, county, and state, of

the facility being demolished or renovated~

(viii) Scheduled starting and completion dates of

asbestos removal work (or any other activity, such

as site preparation that would break up, dislodge, or

similarly disturb asbestos material) in a demolition

or renovation; planned renovation operations

involving individual nonscheduled operations shall

only include the beginning and ending dates of the

report period as described in paragraph (a)(4)(iii) of

this section.

(ix) Scheduled starting and completion dates of

demolition or renovation.

(x)

Description

of planned

demolition

renovation work to be performed and method(s) to

be employed, including demolition or renovation

techniques to be used and description of affected

facility components.

(xi) Description of work practices and engineering

• controls to be used to comply with the requirements

of this subpart, including asbestos removal and

waste-handling emission control procedures.

(xii) Name and location of the waste disposal site

where the asbestos-containing waste material will

be deposited.

(xiii) A certification that at least one person trained

as required by paragraph (c)(8) of this section will

supervise the stripping and removal described by

this notification. This requirement shall become

effective 1 year after promulgation of this

regulation.

(xiv) For facilities described in paragraph (a)(3) of

this section, the name, title, and authority of the

State or local government representative who has

ordered the demolition, the date that the order was

issued, and the date on which the demolition was

ordered to begin. A copy of the order shall be

attached to the notification.

(xv) For emergency renovations described in

paragraph (a)(4)(iv) of this section, the date and

hour that the emergency occurred, a description of

the sudden, unexpected event, and an explanation of

how the event caused an unsafe condition, or would

cause equipment damage ‘or an unreasonable

fmancialburden~

(xvi) Description of procedures to be followed in

the event that unexpected RACM is found or

Category II nonfriable ACM becomes crumbled,

pulverized, or reduced to powder.

(xvii) I~.Tame, address, and telephone number of the

waste transporter.

(5) The infonnation required in paragraph (b)(4) of

this section must be reported using a form similar to

that shown in Figure 3.

owner or operator of a demolition or renovation

activity to ‘whom this paragraph applies, according

to paragriph (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 is not friable.

(ii) It is on a facility component that is encased in

concrete or 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

any

asbestos-contaminated debris must be treated as

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40 CFR

61.145

40 C.F.R.

61.145

Page 4

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.

(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 or disjoining operations; and

(ii) Carefully lower each unit or sectidn to the floor

and to ground level, not dropping, throwing, sliding,

or otherwise damaging or disturbing the P.ACM.

(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.

(i) In renovation operations, wetting is not required

(A) The owner or operator has obtained prior

written approval from the Administrator, based on a

written application that wetting to comply with this

paragraph would unavoidably damage equipment or

present a safety hazard; and

(B) The owner or operator uses of the following

emission control methods:

(1) A local exhaust ventilation and collection

system designed and operated to capture the

particulate asbestos material produced by ‘the

stripping and removal of the asbestos materials.

The system must exhibit no visible emissions to the

outside air or be designed and operated in

accordance with the requirements in

61.152.

(2) A glove-bag system designed ‘and operated to

contain the particulate asbestos material produced

by the stripping of the asbestos materials.

(3) Leak-tight wrapping to contain all RACM prior

to dismantlement.

(ii) In renovation operations where wetting would

result in equipment damage or a safety hazard, and

the methods allowed in paragraph (c)(3)(i) of this

section cannot be used, another method may be

used after obtaining written approval from, the

Administrator ,based upon a determination that it is

equivalent to wetting in controlling emissions or to

the methods allowed in paragraph (c)(3)(i) of this

section.

(iii) A copy of the Administrator’s written approval

shall be kept at the worksite and made available for

inspection.

(4) After a facility component covered with, coated

with, or containing RACM has been taken out of the

facility as a unit or in sections pursuant to paragraph

(c)(2) of this section, it shall be stripped or

contained in leak-tight wrapping, except as

described in paragraph

(c)(5)

of this section. If

stripped, either:

(i) Adequately wet the RACM during stripping; or

(ii) Use a local exhaust. ventilation and collection

system designed and operated to capture the

particulate asbestos material produced by the

stripping. The system must exhibit no visible

emissions to the outside air or be designed and

operated in accordance with the’ requirements in

61.152.

(5)

For large facility components such as reactor

vessels, large tanks, and steam generators, but not

beams (which must be handled in’ accordance with

paragraphs (c)(2), (3), and (4) of this section), the

RACM is not required to be stripped if the

followingrequirements are met:

(i) The component is removed, transported, stored,

disposed of, or reused without disturbing or

damaging the RACM.

(ii) The component is encased• in a leak-tight

wrapping.

(iii) The leak-tight wrapping is labeled according to

61.149(d)(l)(i), (ii), and (iii) during all loading

and unloading operations and during storage.

(6) For all RACM, including material that has been

removed or stripped:

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40CFR~61.l45

40 C.F.R.

61.145

Page 5

(i) Adequately wet the material and ensure that it

remains wet uiitil 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 the 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.

(iv) RACM contained in leak-tight wrapping that

has been removed in accordance with paragraphs

(c)(4) and (c)(3)(i)(B)(3) of this section need not be

wetted.

(7) When the temperature at the point of wetting is

below 0

C (32

F):

(i) The owner or~operator need not comply with

paragraph (c)(2)(i) and the wetting provisions of

paragraph (c)(3) of this section.

(ii) The owner or operator shall remove facility

components containing, coated with, or covered

with RACM as units or in sections to the maximum

extent possible.

(iii) During periods when wetting operations are

suspended due to freezing temperatures, the owner

or operator must record the temperature in the area

containing the facility components at the beginning,

middle, and end of each workday and keep daily

temperature records available for inspection ‘by the

Administrator during normal business hours at the

demolition or ,renovation site. The owner or

operator shall retain the temperature records for at

least 2 years.

(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

foreman

management-level person or other authorized

representative, trained in the provisions of this

regulation and the means of complying with them, is

present. Every 2 years, the trained on-site

individual shall receive refresher training in the

provisions of this regulation. The required training

shall include

a minimum: applicability;

notifications;

material

identification;

control

procedures for removals including, at least, wetting,

local

exhaust

ventilation,

negative

pressure

enclosures, glove-bag

procedures,

and High

Efficiency Particulate Air (HEPA) filters; waste

disposal

‘

work

practices;

reporting

and

recordkeeping; and asbestos hazards and worker

protection. Evidence that the required training has

been completed shall be posted and made available

for inspection by the Administrator at the

demolition or renovation site.

(9)

For facilities described in paragraph (a)(3) of

this section, adequately wet the portion of the

facility that contains RACM during the wrecking

operation.

(10) If a facility is demolished by intentional

burning, all RACM including Category I and

Category II nonfriable ACM must be removed in

accordance with the NESHAP before burning.

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11/11/2004

40CFR~6l.145

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40 CFR

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(Approved by• the Office of Management and

49 FR 25453, June 21, 1984; 55 FR 48419, Nov.

Budgetundercontrolnumber2o6o-OlOl)

20, 1990; 56 FR 1669, Jan. 16, 1991; 58 FR

18016, April 7, 1993

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://nrint.westlaw.comldelivery.html?dest=atp&dataid=A005580000006917000476822... 11/11/2004

40CFR~6l.l45

‘

Page8

40 C.F.R.

61.145

General Materials (GM)

References,

‘

Annotations,

Tables

40 C. F.R.

61.145

‘

4OCFR~61.145

‘

END OF DOCUMENT

‘

httn:/inrint.west1aw.com1deliverv.htrn1?dest~atp&dataidA005580000006917000476822... 11/11/2004

CERTIFICATE OF SERVICE

I, BRIDGET M. CARLSON, an Assistant Attorney General, certify that on the

16th

day

ofNovember 2004, I caused to be served by First Class Mail the foregoing Complaint to the

parties named on the attached service list, by depositing same in postage prepaid envelopes with

the United States Postal Service located at 100 West Randolph Street, Chicago, Illinois 60601.

2~7.

BR1DG~TM.CARLSON