RECEIVED

RECEIVED

CLERK’S

OFFr’F

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS,   

)

DEC 22 2003

ex rel. LISA MADIGAN, Attorney    

)

STATE OF 

ILLINOIS

General of the State of Illinois            

Pollution Control Board

Complainant,

)

PCB 04- 

(Enforcement-Air)

MARC REALTY, INC., an Illinois

corporation, 11 EAST 

ADAMS,

L.L.C.,

an Illinois Limited Liability

Company, and ROBERTS ENVIRONMENTAL

CONTROL, INC., an Illinois

corporation,

Respondents.

NOTICE OF FILING

TO: See Attached Service List

PLEASE TAKE NOTICE that on December 22, 2003, we filed with the

Illinois Pollution Control Board a Complaint, a true and correct copy

of which is attached and hereby served upon you.

Failure to file an answer to this complaint within 60 days may

have severe consequences. Failure to answer will mean that all

allegations in 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.

Financing to correct the violations alleged may be available

through the Illinois Environmental Facilities Financing Act 20 ILCS

3515/1, et 

seq.

Respectfully submitted,

LISA 

MADIGAN

Attorney General

State of Illinois

BY:

Christoph~

Assist

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-3532

SERVICE LIST

VIA CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Marc Realty, Inc.

c/o Registered Agent

Allen B. Glass

200 W. Jackson, *1200

Chicago, Illinois 60606

Mr. Michael J. Quinn

Seyfarth Shaw

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

11 East Adams, LLC

200 W. Jackson, #1200

Chicago, Illinois 60606

Roberts Environmental Control, Inc.

do James T. Wasniewski, Reg. Agent

7410 Duvan Drive

Tinley Park, Illinois 60477

CLERK’S

DEC ~2

OFFT~

2003

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

PollutionSTATE 

OFControlILLINOISBøard

PEOPLE OF THE STATE OF ILLINOIS,

ex rel.

LISA MADIGAN, Attorney

General of the State of Illinois,

Complainant,

)

PCB 04-i

(Enforcement-Air)

MARC REALTY, INC., an Illinois

corporation, 11 EAST ADAMS, 

L.L.C.,

an Illinois Limited Liability

Company, and ROBERTS ENVIRONMENTAL

CONTROL, INC., an Illinois

corporation,

Respondents.

COMPLAINT

Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, complains of

Respondents, 

MARC 

REALTY, INC., 

11 EAST ADAMS, 

L.L.C., and ROBERTS

ENVIRONMENTAL CONTROL, INC., as follows:

COUNT I

AIR POLLUTION

1.  This Complaint is brought by the Attorney General

against Marc Realty, Inc. and Roberts Environmental Control, Inc.,

on her own motion and upàn the request of the Illinois

Environmental Protection Agency (“Illinois EPA!!) and against 11

East Adams, L.L.C. on her own motion, pursuant to the terms and

provisions of Section 31 of the Illinois Environmental Protection

Act (‘Act”) 

415 ILCS 5/31 (2002)

2.  The Illinois EPA is an administrative agency of the

State of Illinois, created pursuant to Section 4 of the Act, 415

ILCS 5/4 (2002), and charged, 

inter alia,

with the duty of

enforcing the Act.

3.  Respondent, Marc Realty, Inc. (“Marc Realty”), is an

Illinois corporation and is headquartered at 200 W. Jackson St.,

Chicago, Illinois 60606.

4.  Respondent, 11 East Adams, L.L.C., is an Illinois

Limited Liability Company.

5.  Respondent, Roberts Environmental Control, Inc.

(“Roberts”), is an Illinois corporation and is headquartered at

7410 Duvan Drive, Tinley Park, Illinois 60477.

6.  Marc Realty is the operator and manager of a sixteen

floor office building located at 11 E. Adams Street, Chicago, Cook

County, Illinois (“Adams Street building”) 

Marc Realty manages

the property and leases space within it to various tenants for use

as office spate. The majority of the building was occupied by

tenants at all times relevant to this complaint.

7.  11 East Adams,. L.L.C., is.the owner of the Adams Street

Building.

8.  During the month of August, 2002, Marc Realty was

engaged in the renovation of the fourth floor of the Adams Street

building.

9.  Marc Realty contracted with and/or arranged for Roberts

to install a heating, ventilation and air conditioning system

(“HVAC system”) on the fourth floor as part of the renovation.

10. In the course of installing the HVAC system, Roberts

removed or disturbed materials located in and around the ceiling

2

that contained between 35 and 40 chrysotile asbestos.

11. The Respondents’ removal and/or disturbance of the

materials containing asbestos caused emissions of asbestos fibers.

12. An Illinois EPA inspection and sampling on August 7,

2002 determined that materials containing asbestos were disturbed

on the fourth floor of the Adams Street Building and also dispersed

into the elevator and the first floor of the Adams Street Building.

13. Section 9(a) of the Act, 415 ILCS 5/9(a) (2002),

provides as follows:

No person shall:

a.  Cause, threaten or allow the discharge or emission

of any contaminant into the environment of 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;

14. Section 3.315 of the Act, 415 ILCS 5/3.315 (2002),

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.

15. Marc Realty is a “person” as that term is defined in

Section 3.315 of the Act, 415 ILCS 5/3.315 (2002)

16. Roberts is a “person” as that term is defined in Section

3.315 of the Act, 415 ILCS 5/3.315 (2002)

17. Section 3.165 of the Act, 415 ILCS 5/3.165 (2002),

provides the following definition:

3

“CONTAMINANT” is any solid, liquid, or gaseous matter,

any odor, or any form of energy from whatever source.

18. Section 201.102 of the Illinois Pollution Control Board

Air Pollution Regulations (“Board regulations”), 35 Ill. Adm. Code

2D1.102, provides the following definition:

“Air Pollution”: the presence in the atmosphere of one

or more air contaminants in sufficient quantities and of

such characteristics and duration as to be injurious to

human, plant or animal life, to health, or to property,

or to unreasonably interfere with the enjoyment of life

or property.

19. Section 201.141 of the Board regulations, 35 Ill. Adm.

Code 201.141, 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, or so as to prevent the

attainment or maintenance of any applicable ambient air

quality standard.

20. Asbestos is a contaminant as defined in Section 3.165 of

the Act, 415 ILCS 5/3.165 (2002)

21. Asbestos is a known human carcinogen and can be

injurious to human health when inhaled.

22. The emission of asbestos as alleged constituted air

pollution.

23. From at least August 7, 2002 until 

when the abatement

and cleanup was completed Respondents, by their actions as alleged

herein, violated of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002)

and 35 Ill. Adm. Code 201.141.

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

4

respectfully requests that the Board enter an order for Complainant

arid against Respondents with respect to. this Count I:

1.  Authorizing a hearing in this matter at which time the

Respondent will be required to answer the allegations alleged

herein;

2.  Finding that Respondents wilfully, knowingly and

repeatedly violated Section 9(a) of the Act, 415 ILCS 5/9 (a) (2002)

and 35 Ill. Adm. Code 201.141;

3.  Ordering Respondents to cease and desist from further

violations of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002), 35

Ill. Adm. Code 201.141;

4.  Assessing against Respondents a civil penalty of Fifty

Thousand Dollars ($50,000.00) for each violation of the Act, and

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars ($10,000.00) for, each and every day of

violation;

5.  Ordering Respondents to pay all costs including

attorney, expert witness and consultant fees expended by the State

in pursuit of this action; and

6.  Granting such additional relief as the Board deems

appropriate and just.

COUNT II

FAILURE TO COMPLY WITH

NATIONAL EMISSIONS STANDARDS FOR

HAZARDOUS AIR POLLUTANTS

1.

19. Complainant realleges and incorporates by reference

5

herein paragraphs 1 through 12, 14 through 18, and. 20 through 21 of

Count 

I as paragraphs 1 through 19 of Count II.

20. Section 9.1 of the Act, 415 ILCS 5/9.1(2002), provides,

in pertinent part, as follows:

(b) The provisions of Section 111 of the

federal Clean Air Act (42 USC 7411) 

as

amended, relating to standards of

performance for new stationary sources,

and Section 112 of the federal Clean Air

Act (42 USC 7412), as amended, relating

to the establishment of national emission

standards for hazardous air pollutants

are applicable in this State and are

enforceable under this Act.

***

(d) No person shall:

(1) violate any provisions of Sections 111, 112,

165 or 173 of the Clean Air Act, as now or

hereafter amended, or the federal regulations

adopted pursuant thereto;

21. Subpart M of Part 61, Title 40 of the Code of Federal

Regulations (“C.F.R.”) was adopted pursuant to the Section 112 of

the Clean Air Act as part of the National Emissions Standards for

Hazardous Air Pollutants (“NESHAP”) and promulgated the National

Emission Standard for Asbestos and is enforceable in the State of

Illinois pursuant to Section 9.1 of the Act, 415 ILCS 5/9.1 (2002)

22. 40 C.F.R. § 61.141 (2002)provides the following

pertinent definitions:

Asbestos 

means the asbestiform varieties of serpentinite

(chrysotile) 

reibeckite (crocidolite),

cummingtonitegrunerite, anthophyllite, and actinolite-

tremolite.

Asbestos-containing waste materials 

means mill tailings

6

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-

constraining material waste and materials

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 CFR 763,

section 1, Polarized Light Microscopy.

Category’ II nonfriable ACM 

means any material, excluding

Category I Nonfriable ACM, containing more than 1

percent asbestos as determined using the methods

specified in appendix E, subpart B, 40 CFR part 763,

section 1, Polarized Light Microscopy that, when dry,

cannot be crumbled, pulverized, or reduced to powder by

hand pressure.

Friable asbestos material 

means any material containing

more than 1 percent asbestos as determined using the

method specified in appendix E, subpart E, 40 CFR part

763, section 1, Polarized Light Microscopy, that, when

dry, can be crumbled, pulverized, or reduced to powder

by hand pressure

Owner or operator of a demolition or renovation activity

means any person who owns, leases, operates, controls,

or supervises the facility being demolished or renovated

or any person who owns leases, operates, controls, or

supervises the demolition or renovation operation, or

both.

Regulated asbestos containing material 

(RACM) means (a)

Friable asbestos containing 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

II 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.

Renovation 

means altering a facility or one or more

facility components in any way, including stripping or

removal of RACM from a facility component. Operations

in which load-supporting structural members are wrecked

or taken out are demolitions.

23. Respondents engaged in a renovation of the fourth floor

as defined in 40 C.F.R. § 61.141 (2002)

24. Respondent Marc Realty was an operator of a renovation

activity as defined in 40 C.F.R. § 61.141 (2002)

25. 11 East Adams, L.L.C. is the owner of a renovation

activity as defined in 40 C.F.R. § 61.141 (2002)

26. Respondent Roberts was an operator of a renovation

activity as defined in 40 C.F.R. § 61.141 (2002)

27. Neither Roberts, 11 East Adams, L.L.C., nor Marc Realty

was licensed to perform any asbestos abatement related activities

pursuant to the Commercial and Public Building Asbestos Abatement

Act, 225 ILCS 5-201/1, 

et seq, 

(2002)

28. The material disturbed during the renovation contained

more than 1 per cent chrysotile asbestos.

29. The material disturbed in the course of the renovation

constituted RACM as defined in 40 C.F.R. § 61.141 (2002)

30. The RACM removed during the renovation, as well as

materials contaminated with asbestos through contact with RACM,

constituted asbestos-containing waste materials (“ACWM”) as defined

in 40 C.F.R. § 61.141 (2002)

31. 40 C.F.R. § 61.145 (2002) provides 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

8

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:

***

(4) In a facility being renovated, including any

individual nonscheduled renovation operation,

all the requirements of paragraphs (b) and (c)

of this section apply if the combined amount

of RACM to be stripped, removed, dislodged,

cut, drilled, or similarly disturbed is

(i) At least 80 linear meters (260 linear

feet) on pipes or a 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 measure previously.

(b)

Notification requirements. 

Each owner or operator

of a demolition or renovation activity to which

this section applies shall:

(1) Provide the Administrator with written notice

of intention to demolish or renovate.

Delivery of the notice by U.S. Postal Service,

commercial delivery service, or hand delivery

is acceptable.

***

(3) Postmark or deliver the notice as follows:

Ci)  At least 10 working days before asbestos

striping 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

9

(a) (4) (iv) of this section.

Cc)

Procedures for asbestos emission control. 

Each

owner or operator of a demolition 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.

***

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

removed or stripped:

Ci) Adequately wet the material and ensure

that it remains wet until collected and

contained or treated in preparation for

disposal in accordance with § 61.150; and

(ii) Carefully lower the material to the

ground and floor, not dropping, throwing,

sliding, or otherwise damaging or

disturbing the material.

***

(8) Effective 1 year after promulgation of this

regulation, no RACM shall be stripped,

removed, or otherwise handled or disturbed at

a facility regulations 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.

***

32. 40 C.F.R. § 61.150(b) (2002)provides, in pertinent part,

as follows:

***

(b) All asbestos-containing waste material shall be

10

deposited as soon as is practical by the waste

generator at:

(1) A waste disposal site operated in accordance

with the provisions of § 61.154;

33. The amount of RACM disturbed, dislodged or removed

during the renovation exceeded 160 square feet, 260 linear feet or

35 cubic feet.

34. The Respondents failed to thoroughly inspect facility

for the presence of asbestos and failed to the make the

notification required by 40 C.F.R. § 61.145(b) (2002) in violation

of 40 C.F.R. § 61.145(a) and (b).

34. The Respondents failed to remove all RACM from the area

of the Adams Street building in which the renovation was planned

although the renovation activities would break up, dislodge or

disturb the material, in violation of 40 C.F.R. § 61.145 Cc) (1)

(2002)

35. The Respondents failed to avoid disturbing the PACM,

failed to adequately wet the RACM and failed to ensure that the

RACM remained wet until collected and contained for disposal in

violation of 40 C.F.R. § 61.145(c) (6) (2002)

36. The Respondents failed to provide for the on-site

presence of a representative trained in the provisions of the

asbestos NESHAP regulations in violation of 40 C.F.R. §

61.145 Cc) (8) (2002).

37. The Respondents failed to deposit the RACM generated by

the renovation at an appropriate waste disposal site in a timely

11

manner in violation of 40 C.F.R. § 61.150(b) (1) (2002)

38. Each violation of the provisions of Part 61, Subpart M,

of Title 40 of the C.F.R. cited above constitutes a violation of

Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (2002)

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully. requests that the Board enter an order~for Complainant

and against Respondents with respect to this Count II:

1.  Authorizing a hearing in this matter at which time the

Respondents will be required to answer the allegations alleged

herein;

2.  Finding that Respondents wilfully, knowingly and

repeatedly violated Section 9.1(d) of the Act and 40 C.F.R. §

61.145(a), (b), (c)(1), (6) & (8) (2002); and, 40 C.F.R. § 61.150(b)

(2002)

3.  Ordering Respondent to cease and desist from further

violations of Section 9.1(d) of the Act and 40 C.F.R. § 61.145(a),

(b)

Cc) (1), (6) & (8) (2002); and, 40 C.F.R. § 61.150(b) (2002);

4.  Assessing against Respondent a civil penalty of Fifty

Thousand Dollars ($50,000.00) for each violation of the Act, and

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars ($10,000.00) for each and every day of

violation;

5.  Ordering Respondent to pay all costs including attorney,

expert witness and consultant fees expended by the State in pursuit

of this action; and

12

6.  Granting such additional relief as the Board deems

appropriate and just.

PEOPLE OF THE STATE OF ILLINOIS,

LISA MADIGAN

Attorney General

State of Illinois

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

/~,

/‘ ;~•

~‘

By: / 

~ ~

//4~~~.í

~

~

ROSEMARIE CAZEAU, Ch~ef

Environmental Bureau

Assistant Attorney General

OF COUNSEL:

CHRISTOPHER P. PERZAN

Assistant Attorney General

Environmental Bureau

188 West Randolph Street, 20th Floor

Chicago, IL 60601

(312) 814-3532

13

CERTIFICATE OF SERVICE

I, CHRISTOPHER P. PERZAN, an Assistant Attorney General, certify

that on the 22’~day of December, 2003, I caused to be served by

Registered Certified Mail, Return Receipt Requested, 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.

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