RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARtLERK’S OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
NOV 072005
Complainant,
PollutionSTATE
OFControlILLINOISBoard
No. 04-7
(Enforcement
—
Air)
4832 5. VINCENNES, L.P., an Illinois
limited partnership, and BATrEAST
CONSTRUCTION COMPANY, INC.,
An Indiana corporation,
Respondents.
RESPONDENT’S MEMORANDUM IN OPPOSITION TO COMPLAINANT’S
MOTION FOR SUMMARY JUDGMENT
Respondent,
4832
S. Vincennes, L.P., submits
the following
memorandum response in opposition to Complainant’s Motion for Summary
Judgment.
INTRODUCTION
The Complainant, PEOPLE OF THE STATE OF ILLINOIS, through its
attorney, LISA MADIGAN, Attorney General of the State of Illinois, seeks
summary judgment for its complaint for alleged violations of the
ENVIRONMENTAL PROTECTION ACT without any evidence that it is entitled to
judgment as a matter of law. The complaint alleges that the Respondent, 4832
S. Vincennes, L.P., an Illinois limited partnership committed violations for Air
Pollution and Failure to Inspect and follow the proper emission control
procedures when asbestos was discovered.
COUNTER STATEMENT OF FACTS
The Complainant is well aware that prior to the beginning of the
renovation of this project a Phase I environmental assessment was performed
(Miller 2004 Dep. P. 31-32) with no indication that asbestos was present.
Further that the premises were boarded up and secure (Miller 2004 Dep. P. 35).
When the Respondent, through its representative, Gregory Miller, was first
informed that there was a
suspicion
of the presence of asbestos, Mr. Mifier, who
had no experience with asbestos, (Miller 2005 Dep. P. 11) differed to the
knowledge and experience of the contractor to do whatever was necessary and
required under the circumstances (Miller 2005 Dep. P. 1113).
The contractor, Batteast Construction Company, apparently did contract
with Hygieneering, Inc., a Professional Asbestos consulting and Testing Service
(Exhibit A), but never informed Mr. Miller that Hygieneering, Inc., had been
hired.
None of the correspondence, contracts, invoices, tests results, etc.
between Hygieneering, Inc., and Batteast Construction Company were
forwarded to, nor shared with Mr. Miller. Minutes of the construction meetings
(Group Exhibit B) indicate that a testing for asbestos in the basement area had
been done on December 18, 2001 and results were expected in “3-5 days”
Group Exhibit B). Each of the construction meetings include a list of persons
present. None of the attendance lists include the name of Mr. Miller. In
addition the affidavit of MARGARET GUIDARELLI-PELLETIER clearly states
that the firm Hygieneering, was contact by Batteast Construction on December
10, 2001 and that all of the firm’s proposals and billings for services went to
Batteast Construction, it indicates no correspondence or contact with Mr. Miller
or 4832 S. Vincennes. Additionally, her affidavit does not state that she is an
expert, or what expert, if any, will testify that asbestos was found on the
premises. In answer to Respondent’s
2nd
set of Interrogatories the Complaint
states that no expert has been identified at this time and that the investigation
continues (See Complainant’s Answer to Respondent’s
2nd
set of Interrogatories
2
No. 12). The January 2, 2002 Construction Meeting clearly states in ~topic of
discussion” No. 4 that Batteast would close down the job” as a result of the
positive test results for asbestos. The January 16, 2002 meeting indicates that
abatement contractors had been requested to make proposals and the January
30, 2002 meeting indicates that the job site would “close down” all interior
work. Significantly, none of the Construction Meeting Minutes make reference
to any work in progress, and the affidavit of Mr. Zappa refers to January 31,
2002, the day
after the
Construction Meeting notation to “close down” the work
site.
The core of this dispute, therefore, is a factual one.
Despite the
Complainant’s allegations that the Respondent did not properly inspect the
premises before commencing renovation or failing to stop work when asbestos
was discovered, the record demonstrates that Respondent, 4832 S. Vincennes
has raised genuine issues of material fact concerning the adequacy of the pre-
renovation inspection and a factual dispute as to when asbestos was actually
discovered.
The supporting affidavit of Joseph W. Zappa does not establish that there
are no disputed issues of material fact. Paragraph 8 of the Zappa affidavit
states that Mr. Miller refused to stop work on January 31, 2002, where in fact
the affidavit does not affirmatively state the Mr. Zappa or anyone else, ever
spoke with Mr. Miller on January 31, 2002. Actually Mr. Zappa merely left his
cell phone number with an employee of Batteast Construction with no
indication of his official capacity. He did not display any credentials of his
position as an Inspector for the Illinois Environmental Agency, he was not
driving a vehicle with the State of Illinois insignia and left a mere verbal notice
3
that the work site would have to be shut down (Miller 2004 Dep. P. 46). A
written Stop Work order was received by Mr. Miller on February 5, 2002
(Exhibit C). On the same day, an Inspector F. Roseman from the City of Chicago
Department of Environment visited the site and was given assurance by the
security personnel that on-site security would be maintained (Exhibit D).
ARGUMENT
Summary judgment is appropriate only if the pleading, admissions on file
and affidavits show there are no issues of material fact and the moving party is
entitled to judgment as a matter of law. Wilder Bindingco —v- Oak Park Trust
and Savings Bank, 135 III. 2d 121, 130 (1990). In making this determination,
courts construe the pleadings, admissions, exhibits and affidavits strictly
against the movant and liberally in favor of the opponent and grant summary
judgment “only when the right of the moving party is clear and free from doubt”
Id. Citing Purtil —v- Hess, Ill. 2d 229, 240 (1986). Additionally, the non-movant
is entitled to have all reasonable inferences resolved in its favor. Certified
Mechanical Contractors —v- Wright & Co., Inc., 162 Ill. App. 3d 400 (2d Dist.
1987).
In this case the pleadings on file and exhibits submitted in opposition to
the Motion for Summary Judgment establish that genuine issues of fact remain
as to whether the Respondent failed to inspect and to follow proper emission
control procedures when asbestos was discovered. These disputed facts
preclude summary judgment in favor of the Complainant.
4
CONCLUSION
For the reasons set forth above, 4832 5. Vincennes, L .P., an Illinois
limited partnership respectfully requests that the Hearing Officer deny the
Complainant’s Motion for Summary Judgment.
Respectfujjy submitted,
01
M. SPURLOCK
tes,
L.P.
5
CERTIFICATE OF SERVICE
I, Oliver M. Spurlock, attorney, do certify that we caused to be served
this
4
day of November, 2005, the Respondent’s Memorandum in Opposition to
Complainant’s Motion Summary Judgment, to the persons named below by
placing the same in overnight mail with U.P.S. postage prepaid, at 9415 South
State Street, Chicago, Illinois 60619.
Paula Becker Wheeler
Assistant Attorney General
188 W. Randolph,
200
floor
Chicago, IL 60601
Oliver M( Spurlock
Attorney at Law
9415 South State Street
Chicago, Illinois 60619
(773) 660-4300
RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV
072005
STATE OF ILLINOIS
PEOPLE
OF
THE
STATE OF ILLINOIS,
Pollution Control Board
Complainant,
No. 04-7
(Enforcement
—
Air)
4832 S. VINCENNES, L.P., an Illinois
limited partnership, and BATI’EAST
CONSTRUCTION COMPANY, INC.,
An Indiana corporation,
Respondents.
NOTICE OF FILING
To:
Paula Becker Wheeler
Assistant Attorney General
Environmental Bureau
188 W. Randolph Street, 20th Floor
Chicago, Illinois 60601
PLEASE TAKE NOTICE that we have today,
,tMtrJ*~7
,
2005, filed
with the office of the Clerk of the Illinois Pollution Control Board an original and
four copies of our Respondent’s Memorandum in Opposition to Complainant’s
Motion for Summary Judgment, a copy ofwhich is attached herewith and
served upon you.
Respectfully submitted,
OLIVER M. SPURLOCK
Att
ey for 4832 5. Vincennes, L.P.
D
;~0l 12: ~ E\A 630 ~$93ai~
-
IIYCIENIWRING
~l~~#uu.) ~
Hygieneenng, Inc.
7575 Pla~Cowt,WiHbwbmok,IL-6052
K,(J industrial hygiene, safety and environmental consuWMc
(630) 654~2SS0U FAX~(630 B~-3
December 10, 2001
Ms. Valerie Baueast-Flcnñug
~ia Fax: 219-289.227()
Bactaasc Construction
~
43011. LaSalie
South Hend, N 40617
RK: To identify the services and fees associated with the Professional Asbestos Consulting and Testing
Senice.~
tar
wc’rk :tssueiated widi the properly at 4S32 S. Vineennes (Mayfair Apartments).
Scope
of’
Work
To support the Above referenced projeci., Hygienect-ing will perform an on-site inspection of the property
located cit 4832 S. \‘incenne,s
to
Identify asbestos containing materials. .S~nnplas will be collected of
suspect USI)CSU)S
COfl~inhTig
bt~iIding‘~atcdats.sulk samples coticeted will he analyzed by Polarized t.i~lu
Micrtu~copv(I’LM) n a NVLAP accredited
laborauny. A project
report of will
he ~LlbJninedwithin direc
weclc~of the project
coinp1eri.~n.
Associated Fees
lite fixed fee
lLr
thc on~site~inspection,report generation and analysis for UI) to 3 PLM bulk samples is
Sl,2l0.cJ0.
II additional N.M bulk sttinç~lingis necessary, $20.00 per bulk sample will he charged. Additional bulk
samp!ing ~cillnut be conducted unlesc approved by BatteasI Constntction Representative.
A shill i~defined as up to 8coitsectilive working houN. Additional time spent will be bitted at a rate iii
$75.00 per hour.
This document has been sent to ciwity project scope and associated fees, if there are any questions please
colanci mc at l4ygieneering,’
Inc.
We will schedule this work accordingly with Batteasi Cor~trucLiofl
to
mccl he projects needs ctccotdingly.
l’hank you for iht.s opponun¾tyto
assist B~EtcastConstruction in meeting the
legal and ethical
standards us
thes ripply to
snt’et~’and
environmentel
health.
Acceptance of Propos2l
Authorized
Signurnre
Authotized Signature
Hygienctriiq, Inc.
Batteast Construction
J
Dute:
~ft_L
Dale:
‘z/iyjni
TO
Confirm seheduflog alibis work, pleas review (Ito following
Terms
& Conditions, sign, date
and
fa,c a copy of this docuuie~tto;
.Iacquelinc
M. Cadwaltader
Hygleneering,
Inc.
FAX: 630-789.3813
CC:
Brad
ICarich. IIygiwiecrln~,Inc.
Proposal 259
EXHIBIT
A
~s.IJs
~
,__,_.t
~_
.
.,.,
,,
S
Batteost
Construction
~,
430
East
LaSaIIe
Avenue
Company, Inc.
South Send, IN
46617
CO?4STRUCI1ON MEETING Na. p
MavfWrAnirteenti. Cbkas. IL
Amtingwasheldatthcjobsileat lOOOamWtSyDeeembcl9,2001 with
lowiJ~prea!1t
Mr. Nthk
Thompson
CMS SheetMetal
Mr. Mike Cay
.
Caznumity
otl~ael
Mr.Robejsmith
:
S&SPhunbingendSewer
Mr. San, Suamz
.
.
Buaez pn~lj~
Ms Alice Scholar
Uecthorn Associates
Mi
Anthony Aldndele
Nia Arthft~ti,h~
Mr. Bill Batteast
Bettoast Construct. Co., Inc.
Mr. Percy Oulmore
Ilsnne Constructiat
Co.,
Inc. (BCCI)
Mr. J~vkBaum
Basal ConsimeSi
Co.. Tnt. (BCCfl
The topics oldiscussion wae as Liows.
1.
The
minutes of
Meeting
No.2 ~e approved as wi-itton
2.
Doyle reminded
Subconttactonto post buJiatS, ssfety pasta axidcnt reports, etc. on ~‘“Th”~bosul ni-wi to
maiSain MSDS manuals, etc. for OSITA. etc. in
Iioueast’s
field otliec.
3.
There
was a gcnaul discussion about
the
schedule — sequence of constuclion. A PrdiSaiy Schedule dated
December £2001
is
atiached andwill be developed as the Pttdect Schedule.
4.
BaItoast anticipates aIming to install windows within the ne* 2-3 weeks fri the nojih sing which will require
about
4 weeks to
complete. The
sputh wing wtnd~swill follow immedIatdy.
5, StE
reported the site tompon4y
r~
has tton insudled.
6. Batteasc anuciporea providinj toswy heat in iS north wing alter the building is ‘by and ericloset
7. Battcast has provided
a
1o4c4stuagc box on site üw tools and equipment storage.
S.
Bill reported the testing of mjtiials &otn thebasement for asiatos ‘*ss done Tuesday andresults are o.patS in
3-5 da~.
9.
lianeast has replaced the ftmning caflactor cii the ptjai.
10. Bill confirmed with the Owner it has full coverage ofBuilt’s
1ISk
1nsuranc~
II. Anthony confirmed Lit windows an to he glazed with thcial pines with LeE glass on the #2 swlbce per the
12
Anthony asked fiadn to vc4’ the
submiftal
of
electrical equipmentto his office.
13. Doyle reported three nusanding R$Ts awaithtg the Architect’s dinxtioot
14.
Contractors may secure ore
fuli
sot ofc4malrucUon
documentsat no &ost by contacting bnpcxinl Blue Print, 338
Harrison
St.,
Oak Park, 0, Tolopbone 761-848-1030.
IS. Mcetingadjrntrncdat lfl:35~im.Thenextm~ingwflibeonsilaatl0:0oazn,WSnaadsy3an.2.2&l2inthejob
alike.
I
16. Thtrsc MSres
represent
thC understcrnding
of
this wiitei~Doyle Daunt Please odvinc in wilting within seven
(7)
das ofany
discrepancies
or chei~ga.
Copies: GM.
Xis,
Subcentmciore, PO.WU3, USaIic, DOM,Dtizboni
~: ~
H
LEE~1TJpJ
Satteast
Cunstructio,1
430
East
LaSalle
Avenue
Company, Inc.
South
Bend, IN
44617
CONflUCI’IONMUTING No.4
Mayfair Annnasa. flicaro. IL
Ameetingwashed at tjIejob sire it 10:00 em Wednudaylanuazy2, 2002 withthefMlawing prosest;
Mr.
Mfl
Thompson
CAVS Sheer Metal
Mr. Andrew Jones
RCHDelta Eleeric
Mr. Al Townsend
I
RCH DeltaScale.
Mr.
Bill Bnuaast
I
flaunts Construction Ca, Inc.
Mr. Percy Osimore
Baurast Coegn.icdon Ca, be, (BCCI)
Mt Doyle Baum
B~teest
Conciscsi
Co.. lee. IBCCII
The topics ofdiscussion were
fàllows:
1.
The minutes of Meeting N~i.3
‘mit
approved as wriften
2.
CANS Sheet Metal and RCH Dolts Elacrnc reported theywill not be an the site until the Ownerpays all
outstanding invoices far the project.
3.
Batteast anticipates suatinj to install windows within the nat 2-3 weeks in the nfl wing which will require
about 4 week, to complete. The south wing windows will fallow immediately.
4. Bill
reported
thc testing &nlarerials twa the basement far asbestos tested positive. Abatement is expected to rake
2-3
weeks to
contpicte
during which time Barreast will close down
the
job.
5.
Percy’sjob telephone number is 773-263-2220
6.
Meeting adjounied at 10j5 sin. Thenext mactag will be on site at 1000 em, Wednesday Jan.16, 2002 inthejob
office.
7. These Minutes represent the understanding o(this wilier. Do)le Bauja Manse advise in writing within seven (7)
days of eny discrepancies or clunges.
Capics~GM, Nit Subconlr3ctocs, PG,WLB, LAS*llt~DOH,Dearbam
~54/
“V
•
.
Batteast
Construction
430
East
LaSalle Avenue
Company, Inc.
55
South
Bend, IN
46617
02 ~
CONSTRUCTION
MEETING
Nt S
Mayfair Apartments, Chicaao, IL
A meeting was held at thejob site at 10:00 am Wednesday Januaiy 16,2002 with the following present:
Mr. Robert Smith
S & S Numbing~Inc.
Mr. Michael L. Sabas
(3rinnel Fire Protection
Mr. Michael Coney
Community of Israel, Corp
Mr. Jack Scibek
Certified Window Co.
Mr. Percy Galmore
Batteast Construction Co., Inc. (8CC!)
Mr. Doyle Baum
Batteast Construction Co., Inc. (BCCF)
The topics of discussion were as follows:
I.
The minutes of Meting No.4 were approved as written
2.
Certified is starting to install ll7windowstoday inthenorthwing inthe commonbilckarea, willieceive 147
single hung windows tomorrow and will hold off’on delivery of the 84 windows for the face brick areas-in-the-north
wing until the lintels are installed. The south wing windows will be delayed until the mason replaces the lintels as
req uixesl Jack states Certified could install all the windows, if required, in about one week tall the lintels are
replaced.
3. Abatement contractors have been requestedto make proposals for asbestos abatanent. To date no proposals have
been received.
4. Grinnell has some concerns about sotTits on the
4th
floor which it will work out with Percy. It will start sprinkler
piping in about two weeks.
5. 1101
will apply the sthppable masking agent to the windows, as specified, before washing the bricic HO! will return
to work as soon as it is current with its pay requests.
6. S & S discussed the change to the water service which will require a change to the sprinkler contractor’s work.
Grinnell has the backfiow preventer for the sprinkler water supply.
7. There was no review of the construction schedule since all stbcontrnctors have pullet! offthe site. The schedule
will be updated once the trades return to work.
8. Percy~sjobtelephone number is 773-268-2220
-
9.
Meeting adjourned at 11:00 am. The next meeting will be on site at 10:00 am, Wednesday Jan.30, 2002 in thejob
office.
10.
These
Minutes represent the understanding of this writer, Doyle Ban Please advise in writing within-seven-(-7)-
days of any discrepancies or changes.
Copies: GM. Nia. Subcontractors, PG.WLB. LaSalle, DOH,Dearbocn
..~
.
Batteast
Construction
430
East LaSatle
Avenue
Company, Inc.
,, ~.
South Bend,
IN
4~617
crY ..1:
~‘‘
02
~
CONSTRUCTION MEETING No.6
Mayfair Apartments, Chicago. IL
A
meeting was held
at thejob
site
at 10:00 ani
Wednesday January
30,2002
with
the folloviinn present:
Mr. Anthony Akindele
Nia Architea Inc.
Mr. Kaiser Moleboge
Nia Architects. Inc.
Ms. Alice Schuler
Dearborn Associates
Mr. Wa~nePietras
Dept. ofHousing
Mr. Robert Smith
S & S
Phunbing, Inc.
Mr. Michael L. Sabas
Simplex Grinnell Fire
Protection
Mr. Michael Conev
Community ot’lsraei Corp
Mr. Aiplioriso Townsend
ItCH. Delta Electric
Mr. Bill Batteast
Batteast Construction
Co.,
Inc.
(BCCI)
Mr.
Percy Galmore
Batteast Constniction Co.. Inc.
(BCCI)
MrJ)ovle
Baum
Batteast Construction Co.. Inc. (BCCI)
The topics of
discussion were
as follows:
1.
The minutes of
Meeting
No.5 were
approved as mitten
2.
Certified has
installed windows in the common
brick areas
of the north wing.
~. Abatement
contractors
have
been requested
tomake
proposals
for asbestos
abatement.
Proposals are expected next
wet
8CC! expects the work
to
commence
within
tat
days
and will close down
the
all interior work during
the
abatement
work.
4.
Grinnell has
some
concerns about
sofilts on
the
4th
floor.
It will
submit by
Feb. 4th a dzawmg for each apartment
with a proposed
piping layout for
the
Architect’s approval. It
will
start sprinkler piping by Feb
11th
5. S & S
discussed the change
to the water
service.
Simplex Grinnell will provide S & S
with
a dra~~ingof the
fire
sprinkler
system for its
permit applicanon,
6. Apartrneru E kitchen has been mirrored per the attached drawing due to an
existing
chimney.
7. Anthony requested
each subcontractor bring a
schedule
of values to the next
payment waJk4hru. Subcontractors
“ill not be included in the payment
request
if it
doesn’t have a schedule
of
values
at the walk-thru. This
walk-thru
meeting
will be
on
Wednesday
Feb.
27th
at 10:00 AM.
S. There
was a brief
review of
the
construction
schedule and
8CC!
expects
to updated
the
current scheduLe
be
will
expect the
project to
be
substantially complete by Dec. 31
sI
‘02. The
scheduled sequence starting
at the North
wing
tier
A-N
will
be
followed
with Work
finishing in
the South
wing
9.
Percvsjob telephone
number
is 773-268-2220.
10.
Meetzngadjcurncdat
ll:JOam;Thenextmeetingwillbeonsiteatlo:Ooani, WednesdayFeb. l3.2002inthejob
office.
II.
These
Minutes
represent
the
understanding
of this
writer,
Doyle
Baum. Please
advise in
twiting within
seven
(7)
days of
any
discrepancies or
changes.
Copies: (3M. Nia. Subcontractors.
PG.WLR.
LaSalle. BOB. Dearborn
City ofChicago
RichardM.
Daley,
Mayor
Department
ofHousing
John
(3. Markowski
Commissioner
318 South Michigan Avenue
Chicago. Illinois 60604
(312) 747-9000
(312) 747-1670 (FAX)
(312)744-169! (flY)
http://www.ci.chi.il.us
February5,
I
2002
Mr.
Gregory Miller
9415 South State Street
Chicago, IllinoiS 60619
Re:
Stop Work Order
4832 South Vincennes
Please be advised that the City ofChicago, Department ofHousing, Construction
AdministraUon Division is issuing a Stop Work Order for the above referenced rehabilitation
project It hascome to our attention that during the demotitiqn phase ofthis project) A~C.M.’s
(Asbestos Contained Materials) were found on healing supply pipes in the basement areas.
Your general contractor, Batteast Consta~uctiOnmust cease all construction activity immediately.
It is imperative that the following steps be taken at once.
•
The material in question must be removed by a licenced
and bonded asbestos abatement contractor.
•
The contaminated material shall be removed in accordance
with alt bcal, State and Federal Guidelines.
•
The ACM’s shall be taken to an approved Hazardous Material
dump site and the Department ofHousing shall receive copies
ofthe dump tickets.
An air quality testofthe building shall be conducted after the
ACM removal. No construction work may continue untilthe
air quality meets all Local, State and Federal Standards.
•
The DepartmentofHousing shall also receivethe following
documentation.
•
Proposal from your abatement contractor.
•
State License.
•
Insurance.
•
Air quality test results.
If you have any questions regarding this directive, please contact me at (312) 747-6713.
Thank you for your cooperation and I lookforward to working with you toward the resolution
of this matter.
Very truly yours,
iETr~l~3oRllnQoS
PatrickDeputy
Poirich
J.
CommissionerCurlin
j
__________
Construction
Mministration Division
BU!LDINGCNICAOQTOGETHER
__
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*
CITY OF CHICAGO
DEPARTMENT
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