1. NOTICE OF FILING
      2. CERTIFICATE OF SERVICE
    1. RECEIVE~
      1. ANSWER
      2. COUNT I
      3. 415 ILCS 5/3.165 (2002).
      4. COUNT II
      5. COUNT V
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARaECEIVED
PEOPLE OF THE STATE OF ILLINOIS
)
CLERK’S OFFICE
)
0C1142005
Complainant,
)
)
STATE OF ILLINOIS
Pollution Control Board
PATTISON ASSOCIATES LLC, an
)
No. PCB 05-181
Illinois limited liability company,
)
(Enforcement
—
Air)
and 5701 SOUTH CALUMET LLC, an
)
Illinois limited liability company,
)
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that we have today, October 14, 2005, filed with the Office of
the Clerk ofthe Illinois Pollution Control Board an original and fourteen (14) copies ofthe
attached Respondents’ Answer to Complaint, a true and correct copy ofwhich is hereby served
upon you.
DATED: October 14, 2005
Respectfully submitted,
PATTISON ASSOCIATES, LLC and
5701 SOUTH CALUMET, LLC
By____________________________
One of Their Attorneys
Neal H. Weinfield, Esq.
Allyson L. Wilcox, Esq.
Bell, Boyd & Lloyd LLC
70 West Madison Street
Suite 3100
Chicago, IL 60602
312.372.1121
Firm Number: 90100
CERTIFICATE OF SERVICE
Allyson L. Wilcox, an attorney, hereby certifies that she caused a copy of the attached
Respondents’ Answer to Complaint to be served upon:
Paula Becker Wheeler
Office of the Attorney qeneral
188 West Randolph, 20t Floor
Chicago, IL 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 W. Randolph Street
Chicago, Illinois 60601
via regular U.S. Mail, postage pre-paid, on October 14, 2005.
yson L. Wi
RECEIVE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERKS
OCT 142005
OFFI
PEOPLE OF THE STATE OF ILLINOIS
)
soNd
Complainant,
)
)
vs
)
PATTISON ASSOCIATES LLC, an
)
No. PCB 05-181
Illinois limited liability company,
)
(Enforcement
—
Air)
and 5701 SOUTH CALUMET LLC, an
Illinois limited liability company,
)
)
Respondents.
)
ANSWER
NOW COME respondents, PATI’ISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC, by its attorney, Neal H. Weinfield ofthe law firm Bell, Boyd & Lloyd LLC,
and hereby answers the Complaint filed in the above-captioned case as follows:
COUNT I
1.
This Count is brought against Respondent, PATTISON ASSOCIATES LLC
(“Pattison”), an Illinois limited liability company, on behalfof 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 EPA pursuant to
Section 31 of the Illinois Environmental Protection Act, 415 ILCS 5/31(2002)
(“Act”).
ANSWER:
Admit.
2.
This Count is brought against Respondent, 5701 SOUTH CALUMET LLC
(“5701 Calumet”), an Illinois limited liability company, on behalf of the PEOPLE
OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney General of the
State of Illinois, on her own motion, pursuant to Section 42(d) of the Act, 415
ILCS 5/42(d) (2002).
ANSWER:
Admit.
3.
The Illinois EPA is an administrative agency established in the executive branch
of the State government by Section 4 of the Act, 415 ILCS 5/4 (2002), and
charged,
inter alia,
with the duty of enforcing the Act.
ANSWER:
Admit.
4.
At all times relevant to this Complaint, Respondent, Pattison, was and is an
Illinois limited liability company in good standing. Pattison was and is also the
contractor hired to conduct renovation activities in the 18-unit apartment complex
located at 5701 South Calumet Avenue, Chicago, Cook County, Illinois (“site”).
ANSWER:
Pattison denies that it conducted any “renovation activities”, as such term is
defined in the NESHAP regulations between March 25, 2003, when 5701 South
Calumet LLC purchased the site and October 30, 2003, when contractors hired by
Respondents lawibIly conducted asbestos abatement and disposed activities.
5.
At all times relevant to this Complaint, Respondent, 5701 Calumet, was and is an
Illinois limited liability company in good standing. 5701 Calumet was and is also
the owner of the 18-unit apartment complex located on the site.
ANSWER:
Admit.
6.
On October 15, 2003, the Illinois EPA performed an inspection ofthe apartment
complex on the site after an interior demolition had been performed on the
complex.
ANSWER:
Respondents admit that the Illinois Environmental Protection Agency performed
an inspection of the subject apartment complex after interior demolition had been
performed on certain floors of the structure not including the basement level.
Respondents deny that such interior demolition between March 25, 2003, and
406344/E/I
2
October 30, 2000, came into contact with, or removed asbestos containing
material, or constituted “renovation activities” as that term is defined in the
NESHAP regulations.
7.
On October
15,
2003, the Illinois EPA inspector observed disturbed suspect
material on the floor and approximately 12 linear feet of suspect material on pipes
leading from a boiler in the basement area.
ANSWER:
Respondents lack personal knowledge of the veracity of the allegations contained
within this paragraph and therefore deny the same.
8.
On October
15,
2003, a sample of dry, friable suspect material obtained from the
northeast part of the boiler room in the basement tested positive for 20
chrysotile asbestos.
ANSWER:
Respondents lack personal knowledge of the veracity of the allegations contained
within this paragraph and therefore deny the same.
9.
On October 15, 2003, a sample of dry, friable suspect material obtained from the
a pipe above the boiler tested positive for 10 chrysotile asbestos. The complex
had not been inspected prior to the renovation activities.
ANSWER:
Respondents lack personal knowledge of the veracity of the allegations
concerning the nature of asbestos from a pipe above the boiler and therefore deny
the same. Respondents deny that they conducted “renovation activities” as
defined in the NESHAPs regulations. Respondents admit that to the best of their
knowledge, IEPA did not inspect the apartment complex before October 15, 2003.
406344/E/I
3
10.
On October 15, 2003, the EPA inspector measured where approximately 350 feet
oflinear piping had been removed, leaving approximately 12 feet of linear piping
intact in the basement of 5701 South Calumet Avenue.
ANSWER:
Respondents lack personal knowledge ofthe veracity ofthe allegations contained
within this paragraph and therefore deny the same.
11.
On October 21, 2003, microvacuum samplings were taken at the site, two of
which showed elevated levels of asbestos fibers in the basement of 5701 South
Calumet Avenue.
ANSWER:
Respondents lack personal knowledge ofthe veracity of the allegations contained
within this paragraph and therefore deny the same.
12.
The amount of dry, friable asbestos-containing material (“ACM”) observed in the
basement exceeded 260 linear feet.
ANSWER:
Respondents lack personal knowledge of the veracity of the allegations contained
within this paragraph and therefore deny the same.
13.
The Respondents caused or allowed friable ACM to be deposited, uncontained,
throughout the basement ofthe complex. By such improper handling ofthe ACM
and failure to follow appropriate emission control procedures, Respondents
allowed asbestos fibers to be released to the atmosphere.
ANSWER:
Denied.
14.
Pursuant to Section 1 12(b)(l) of the Clean Air Act (“CAA”), 42 USC 7412(b)(l),
the Administrator ofthe United States Environmental Protection Agency
(“USEPA”) has listed asbestos as a hazardous air pollutant.
406344/ER
4
ANSWER:
The allegations contained in this paragraph constitute conclusions oflaw and
therefore, no response is required.
15.
Asbestos is a known human carcinogen.
ANSWER:
Denied.
16.
Section 9(a) of the Act,
415
ILCS 5/9(a) (2002), 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;
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
17.
Section 201.141 ofthe Board’s Air Pollution Regulations, 35111. 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
.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
18.
Section 3.115 ofthe Act, 415 ILCS 5/3.115(2002), defines air pollution as:
“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 property, or to
unreasonably interfere with the enjoyment of life or property.
406344/ER
5
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
19.
Section 3.165 ofthe Act, 415 ILCS 5/3.165 (2002), defines contaminant as:
“CONTAMINANT” is any solid, liquid, or gaseous matter, any odor, or any form
of energy, from whatever source.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
20.
Section 3.3 15 of the Act, 415 ILCS 5/3.3 15 (2002), defines person as:
“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.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
21.
Respondents are “persons” as that term is defined in Section 3.315 of the Act, 415
ILCS 5/3.3 15 (2002).
ANSWER:
The allegations contained in this paragraph constitute conclusions oflaw and
therefore no response is required.
22.
Asbestos is a “contaminant” as that term is defined by Section 3.165 of the Act,
415 ILCS 5/3.165 (2002).
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
406344/E/l
6
23.
From at least October 15, 2003, to approximately November 3, 2003,
Respondents caused or allowed dry friable asbestos containing material to enter
into the atmosphere.
ANSWER:
Denied.
24.
As the party that conducted or managed the renovation activities, the Respondent,
Pattison Associates LLC, has caused, threatened or allowed the discharge or
emission of asbestos into the environment so as to cause air pollution in that dry,
friable asbestos containing materials were improperly handled.
ANSWER:
Denied. Respondents further deny that they conducted renovation activities as
that term is defined in the NESHAPs regulations between March 25, 2003, and
October 30, 2003.
25.
As the owner of the property on which the renovation activity was taking place,
the Respondent, 5701 South Calumet LLC, has caused, threatened or allowed the
discharge or emission ofasbestos into the environment so as to cause air pollution
in that dry, friable asbestos containing materials were improperly handled.
ANSWER:
Denied. Respondents further deny that they conducted renovation activities as
defined in the NESHAPs regulations between March 25, 2003, and October 30,
2003.
26.
By allowing dry friable asbestos containing materials to remain in a friable state,
exposed to the elements, Respondents have caused or allowed air pollution in
Illinois in violation of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002) and 35 III.
Adm. Code 201.141.
ANSWER:
Denied.
406344/ER
7
WHEREFORE, Respondents PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully requests that this Board enter an order against Complainant and in
favor of Respondents and for any other relief that this Board deems just and proper.
COUNT II
—
17. Complaint realleges and incorporates herein by reference paragraphs 1 through 15
and 20 through 21 of Count las paragraphs I through 17 of this Count II.
ANSWER:
Respondents reassert and hereby incorporate their answers to paragraphs 1
through 17 of Count I as their answers to paragraphs I through 17 ofCount II.
18.
Section 9.l(d)(1) ofthe Act, 415 ILCS 5/9.l(d)(l) (2002), provides as follows:
No person shall:
1.
Violate any provisions of Sections 111, 112, 165, 173 ofthe Clean Air
Act, as now or hereafter amended, or federal regulations adopted pursuant
thereto; or.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
19.
Pursuant to Section 11 2(b)(l) of the Clean Air Act (“CAA”), 42 USC 741 2(b)(1),
the Administrator ofthe United States Environmental Protection Agency
(“USEPA”) has listed asbestos as a hazardous air pollutant.
ANSWER:
The allegations contained in this paragraph constitute conclusions oflaw and
therefore no response is required.
20.
Section 112(d) ofthe CAA, 42 USC 74 12(d), 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
. .
406344/ElI
8
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
21.
Section 112(h) of the CAA, 42 USC 7412(h), titled, Work Practice Standards and
Other Requirements, 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 Administrator’s judgment
is consistent with the provisions of subsection (d) or
(0
ofthis section
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
22.
On June 19, 1978, the Administrator determined that work practice standards
rather than emission standards are appropriate in the regulation ofasbestos, 43
Fed. Reg. 26372 (1978), and therefore, pursuant to Section 112 ofthe CAA, the
USEPA has adopted National Emission Standards for Hazardous Air Pollutants
(NESHAPs), including asbestos, 40 CFR 61, Subpart M.
ANSWER:
The allegations contained in this paragraph constitute conclusions oflaw and
therefore no response is required.
23.
Section 61.141 ofthe USEPA’s NESHAPs, 40 CFR 61.141 (July 1, 1997),
provides, in 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.
Asbestos
means the asbestifonn varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-tremolite.
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 A, subpart F, 40 CFR part 763, section 1, Polarized Light
Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder
by hand pressure.
406344/El!
9
Demolition
means the wrecking or taking out ofany 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 ofits 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
CFR 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.
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 II nonfriable ACM that has a high probability of
becoming orhas become crumbled, pulverized, or reduced to powder by the
forces expected to act on the material in the course ofdemolition or renovation
operations regulated by this subpart.
Remove
means to take our 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.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required. To the extent a response is required, the
allegation is denied.
24.
The apartment complex as referenced herein is a “facility” as that term is defined
in4O CFR 61.141.
406344/E/I
10
ANSWER:
Admitted.
25.
The removal ofasbestos at the apartment complex constitutes a “renovation” as
that term is defined in 40 CFR 61.141.
ANSWER:
Denied, No asbestos was removed from the apartment by Respondents between
March 25, 2003, and October 30, 2003. Further, the allegations contained in this
paragraph constitute conclusions oflaw and therefore no response is required.
26.
Respondent, Pattison Associates LLC, as the entity that operated, controlled or
supervised the renovation activities, was the “operator of the, renovation
activities”, as that term is defined in 40 CFR 61.141.
ANSWER:
Denied. No asbestos was removed from the apartment by Pattison, and no
renovation activities occurred at 5701 South Calumet LLC between March 25,
2003, and October 30, 2003. Further, the allegations contained in this paragraph
constitute conclusions oflaw and therefore, no response is required. To the extent
that any response is required, Respondents deny the allegations contained within
this paragraph.
27.
5701 South Calumet LLC, as the owner of the apartment complex, was the
“owner of the renovation activities”, as that term is defined in 40 CFR 61.141.
ANSWER:
Denied. No “renovation activities” occurred at 5701 South Calumet LLC
between March 25, 2003, and October 30, 2003. Further, the allegations
contained in this paragraph constitute conclusions of law and therefore no
response is required. To the extent that any response is required, Respondents
deny the allegations contained within this Paragraph.
406344/F/I
II
28.
The asbestos-containing material found in the complex is “regulated asbestos-
containing material (RACM)” as that term is defined in 40 CFR 61.141.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore, no response is required. To the extent that any response is required,
Respondents deny the allegations contained within this paragraph.
29.
Section 61.145(a) ofTitle 40 of the Code of Federal Regulations, 40 CFR
61.145(a) (July 1, 1998), as adopted in Section 9.1(d) of the Act, titled Standard
for demolition and renovation, provides, in pertinent part, as follows:
(a) Applicability.
To determine which requirements of paragraphs (a)(b)
and (c) ofthis Section apply to the owner or operator of a demolition or
renovation activity and prior to the commencement ofthe 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 ofparagraphs (b) and (c) of this section apply to each owner
or operator ofa 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
ofRACM 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.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
30.
Respondents, as owners and/or operators of the renovation activity, failed to
thoroughly inspect the apartment complex for the presence of asbestos prior to
commencement of renovation activities or at any time, in violation of the Clean
406344/E/I
12
Air Act, or more specifically the NESHAP for asbestos and, therefore, are in
violation ofSection 9.1(d)(l) of the Act.
ANSWER:
Denied. Respondents further deny that they conducted “renovation activities”, as
defined by NESHAP regulations between March 25, 2003, and October 30, 2003.
The law cited by claimants in this paragraph is inapplicable to the case at bar
because they did not conduct renovation or demolition activities to which this
section applies; therefore, defendants deny the same.
31.
The Respondents, by their actions or inaction as alleged herein, have violated
Section 9.1(d)(l) ofthe Act, 415 ILCS 5/9.1(d) (1) (2002) and 40 CFR
61.145(a)(2002).
ANSWER:
Denied.
WHEREFORE, Respondents PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully requests that this Board enter an order against Complainants and
in favor of Respondents and for any other relief that this Board deems just and proper.
COUNT III
—
28. Complainant realleges and incorporates herein by reference paragraphs 1 through
28 of Count II as paragraphs 1 through 28 of this Count III,
ANSWER:
Respondents reassert and hereby incorporate their answer to paragraphs I through
28 of Count II as their answers to paragraphs 1 through 28 of Count III.
29.
Section 61.145(b)(l) of USEPA’S NESHAPs, 40 CFR 6l.145(b)(l) (July 1,
2002), titled Notification requirements, provides as follows:
Each owner or operator of a demolition or renovation activity to which
this section applies shall:
406344/F/I
13
(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.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore no response is required.
30.
Respondents, as owners and/or operators of a renovation activity, failed to notify
the Administrator of their intent to demolish or renovate, in violation of the Clean
Air Act, or more specifically the NESHAP for asbestos and, therefore, are in
violation of Section 9.1(d)(1) ofthe Act.
ANSWER:
Denied. Respondents were not owners and/or operators of a “renovation activity”
as defined in the NESHAP regulations, because no renovation activity occurred at
the site between March 25, 2003, and October 30, 2003.
31.
The Respondents, by their actions or inactions as alleged herein, have violated
Section 9.l(d)(1) of the Act, 415 ILCS 5/9.1(d) (1) (2002), and 40 CFR 61.145(b)
(1).
ANSWER:
Denied.
WHEREFORE, Respondents PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully requests that this Board enter an order against Complainant and in
favor ofRespondents and for any other relief that this Board deems just and proper.
COUNT IV
—
28. Complainant reassert and incorporates herein by reference paragraphs I through
28 of Count III as paragraphs 1 through 28 of this Count IV.
ANSWER:
Respondents reassert and hereby incorporate their answer to paragraphs 1 through
28 of Count II as their answers to paragraphs 1 through 28 of Count IV.
406344/E/I
14
29.
Section 61.145(c) of USEPA’s NESHAPs, 40 CFR 61.1 45(c)(July 1, 2002), titled
Procedures for asbestos emission control, provides, in pertinent part, as follows:
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.
*
**
(3)
When RACM is stripped from a facility component while it
remains in place in the facility, adequately wet the RACM during
the stripping operation.
*
**
(6)
For all RACM, including material that has been removed or
stripped;
(i)
Adequately wet the material and ensure that it remains wet
until collected and contained or treated in preparation for
disposal in accordance with §61.150.
*
**
(8)
Effective 1 year afterpromulgation ofthis regulation, no RACM
shall be stripped, removed, or otherwise handled or disturbed at a
facility regulated by this section unless at least one onsite
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.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore, no response is required.
30.
Respondents, as owners and/or operators of a renovation activity, failed to remove
all RACM from a facility being renovated or demolished before an activity began
that would break up, dislodge, or similarly disturb the material or preclude access
for subsequent removal in violation of the Clean Air Act, or more specifically the
406344/F/I
15
NESHAP for asbestos and, therefore, are in violation of Section 9.1(d)(l) of the
Act.
ANSWER:
Denied. Respondents were not owners and/or operators of a renovation activity
as defined in the NESHAP regulations between March 25, 2003, and October 30,
2003. Respondents did not break up, dislodge, or similarly disturb any RACM, or
preclude access for subsequent RACM removal.
31.
Respondents, as owners and/or operators of a renovation activity, failed to
adequately wet all RACM iii place before stripping it from the facility
components at the facility, in violation of the Clean Air Act, or more specifically
the NESHAP for asbestos and, therefore, are in violation of Section 9.l(d)(1) of
the Act.
ANSWER:
Denied. Respondents did not own or operate a renovation activity and did not
conduct “renovation activity” as defined in the NESHAP for asbestos, and did not
remove or strip asbestos.
32.
Respondents, as owners and/or operators of a renovation activity, failed to
adequately wet all RACM and ensure that it remained wet until collected and
contained or treated in preparation for disposal, in violation of the Clean Air Act,
or more specifically the NESHAP for asbestos and, therefore, are in violation of
Section 9.l(d)(l) of the Act.
ANSWER:
Denied. Respondents did not own or operate a renovation activity and did not
conduct “renovation activity” as defined in the NESHAP for asbestos between
March 25, 2003, and October 30, 2003.
33.
Respondents, as owners and/or operators of a renovation activity, failed to have
any onsite representative trained in the provisions of the asbestos NESHAP, in
406344/F/I
16
violation of the Clean Air Act, or more specifically the NESHAP for asbestos
and, therefore, are in violation of Section 9.l(d)(1) of the Act.
ANSWER:
Denied. Respondents did not own or operate a renovation activity and did not
conduct “renovation activity” as defined in the NESHAP for asbestos between
March 25, 2003, and October 30, 2003.
34,
The Respondents, by their actions or inactions as alleged herein, have violated
Section 9.l(d)O) of the Act, 415 ILCS 5/9.1(d) (1) (2002), and 40 CFR 61.145(c)
(1), (c) (3), (c) (6), and(c) (8).
ANSWER:
Denied.
WHEREFORE, Respondents PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully requests that this Board enter an order against Complainant and in
favor of Respondents and for any other relief that this Board deems just and proper.
COUNT V
—28. Complainant realleges and incorporates herein by reference paragraphs 1 through
28 ofCount IV as paragraphs 1 through 28 ofthis Count V.
ANSWER:
Respondents reassert and hereby incorporate their answer to paragraphs I through
28 of Count II as their answers to paragraphs 1 through 28 of Count V.
29.
Section 61.l50(b)(l) of USEPA’s NESHAPs, 40 CFR 61.l50(b)(l) (July 1,2002),
as adopted in Section 9.1(d) ofthe Act, titled Standard for waste disposal for
manufacturing, fabricating, demolition, renovation, and spraying operations,
provides, in pertinent part, as follows:
Each owner or operator ofany source covered under the provisions of
§~61.144,61.145, 61.146, and 61.147 shall comply with the following
provisions:
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*
**
(b)
All asbestos-containing waste material shall be deposited as soon
as is practical by the waste generator at:
(1)
A waste disposal site operated in accordance with the
provisions of Section 61.154.
ANSWER:
The allegations contained in this paragraph constitute conclusions of law and
therefore, no response is required.
30.
The Respondents failed to deposit regulated asbestos-containing waste material as
soon as practical in an appropriate waste disposal site, in violation of the Clean
Air Act, or more specifically the NESHAP for asbestos and, therefore, are in
violation of Section 9.1(d) (1) of the Act.
ANSWER:
Denied. Between March 25, 2003, and October 15, 2003, Respondents did not
remove any asbestos from 5701 Calumet, and therefor did not generate any
regulated asbestos containing material during such time.
31.
Respondents, by their actions or inactions as alleged herein, have violated Section
9.1(d)(1) ofthe Act, 415 ILCS 5/9.1(d) (1) (2002), and 40 CFR 61.150(b) (1)
(July 1,2002).
ANSWER:
Denied.
WHEREFORE, Respondents PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully requests that this Board enter an order against Complainant and in
favor of Respondents and for any other relief that this Board deems just and proper.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Complainant has failed to state a claim on which Relief can be granted.
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WHEREFORE, Respondent PATTISON ASSOCIATES LLC and 5701 SOUTH
CALUMET LLC respectfully request that this Board enter judgment against Complainant and in
favor of Respondents; further request that this Board grant Respondent any other remedythat it
deems just and proper.
SECOND AFFIRMATIVE DEFENSE
Complainant failed to follow proper testing procedures and/or utilized an inappropriate
testing method in order to determine whether asbestos was released into the air in
violation ofstate and federal regulations. As such, Complainant is unable to maintain its
cause of action against Respondents.
Respectfully submitted,
PATTISON ASSOCIATES, LLC and
5701 SOUTH CALUMET, LLC
By
~f~heir
Attorneys
Neal H. Weinfield, Esq.
Allyson L. Wilcox, Esq.
Bell, Boyd & Lloyd LLC
70 West Madison Street
Suite 3100
Chicago, IL 60602
312,372.1121
Firm Number: 90100
406344/F/I
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