ILLINOIS POLLUTION CONTROL BOARD
July 23, 2009
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ENVIRONMENTAL HEALTH AND
SAFETY SERVICES, INC., an Illinois
corporation,
Respondent.
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PCB 05-51
(Enforcement – Air)
OPINION AND ORDER OF THE BOARD (by G.L. Blankenship):
On December 6, 2004, the Office of the Attorney General, on behalf of the People of the
State of Illinois (People), filed an amended complaint (Am. Comp.) against Environmental
Health and Safety Services, Inc. (EHSS).
See
415 ILCS 5/31(c)(1) (2008); 35 Ill. Adm. Code
103.204. The amended complaint alleges that EHSS violated Sections 9(a) and 9.1(d)(1) of the
Environmental Protection Act (Act)
1
(415 ILCS 5/9(a) and 9.1(d)(1) (2008)); 35 Ill. Adm. Code
201.141; and 40 C.F.R. 61.145(b)(1), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and 61.150(a)(1)
and (b)
2
. The People allege that EHSS violated these provisions by (1) causing, threatening, or
allowing the emission of asbestos so as to cause or tend to cause air pollution; (2) failing to
provide a complete National Emission Standards for Hazardous Air Pollutants (NESHAP)
notification for asbestos removal activities; (3) failing to provide a timely NESHAP notification
of rescheduling of asbestos removal activities; (4) failing to adequately wet all regulated
asbestos-containing material (RACM) before stripping from structures; (5) failing to adequately
wet all RACM until collection; (6) failing to adequately wet and keep wet all RACM; and (7)
failing to deposit all RACM at a permitted site. The amended complaint concerns asbestos
removal activities conducted by EHSS at the former Lincoln Park School located at 4103 West
State Street in Rockford, Winnebago County.
Today the Board decides an uncontested motion for summary judgment filed by the
People on March 31, 2009. For the reasons discussed below, the Board grants the People’s
1
All citations to the Act will be to the 2008 compiled statutes, unless the section at issue has
been substantively amended in the 2008 compiled statutes.
2
While the Board generally does not have jurisdiction over USEPA rules, Section 9(b) of the
Act provides that federal NESHAPs “are applicable to the state and enforceable under the Act.”
415 ILCS 5/9(b) (2008). Pursuant to Section 112(b)(1) of the Clean Air Act, 42. U.S.C.
7412(b)(1) (2007), the Administrator of the U.S. Environmental Protection Agency lists asbestos
as a hazardous air pollutant. Asbestos is a known human carcinogen for which there is no safe
level of exposure.
2
motion for summary judgment, requires EHSS to pay a $56,500 civil penalty, and also requires
EHSS to cease and desist from further violations.
In this opinion and order, the Board first reviews the procedural history of this case. The
Board then summarizes the People’s amended complaint. Next, the Board sets forth the relevant
statutory and regulatory provisions and describes the standard of review applied by the Board in
considering summary judgment motions. After summarizing the People’s motion for summary
judgment, the Board provides a discussion of and ruling on that motion before issuing its final
order.
PROCEDURAL HISTORY
On September 13, 2004, the People filed a seven-count complaint against Randy
Oldenberger d/b/a Environmental Health and Safety (Oldenberger). The Board accepted this
complaint on September 16, 2004. On October 18, 2004, Oldenberger filed a motion to dismiss,
asserting that EHSS, an Illinois corporation, performed all of the work referenced in the
complaint. On November 22, 2004, the People filed a response to the motion acknowledging
that EHSS is a corporation in good standing and indicating that it would drop Oldenberger from
the complaint and file an amended complaint against EHSS, the corporation. On December 6,
2004, the People filed a seven-count amended complaint against EHSS alleging that EHSS
committed air pollution violations. The amended complaint does not allege any violations
against Oldenberger, but is otherwise substantially identical to the initial complaint. In an order
dated January 6, 2005, the Board found Oldenberger’s motion to dismiss moot and accepted the
amended complaint for hearing.
On January 13, 2005, and March 21, 2005, the Hearing Officer granted EHSS’ motions
for extension of time to file an answer. People v. Environmental Health and Safety Services,
Inc., PCB 05-51, Hearing Officer Order, (Jan. 13, 2005); People v. Environmental Health and
Safety Services, Inc., PCB 05-51, Hearing Officer Order, (March 21, 2005). On May 23, 2005,
EHSS timely filed an answer (Ans.) to the amended complaint. On December 19, 2005, the
People served a request for admission of facts on EHSS. EHSS served the People with a
response to the request on January 17, 2006. The response was signed only by an attorney, and
not by a representative from EHSS. On January 31, 2006, the People filed a motion to deem
facts admitted. On March 3, 2006, EHSS filed an amended response to the request for admission
of facts (Am. Resp.) and a response to the motion to deem facts admitted. On March 9, 2006,
EHSS made an oral motion to file both pleadings
instanter
. The Hearing Officer granted the oral
motion with respect to the response to the motion to deem facts admitted. People v.
Environmental Health and Safety Services, Inc., PCB 05-51, Hearing Officer Order, (March 9,
2006). However, in light of an objection by the People, the Hearing Officer directed EHSS to
file a written motion for extension of time with respect to the amended response to the request
for admission of facts. On March 14, 2006, EHSS filed a motion for extension of time to file an
amended response to the request for admission of facts. The People filed a response to the
motion for extension of time on March 15, 2006. In an April 6, 2006 order, the Board accepted
EHSS’ amended response to the People’s request to admit facts, granted EHSS’ motion for
extension of time to file an amended response, and denied the People’s motion to deem facts
admitted.
3
On April 7, 2006, the People served on EHSS a set of interrogatories and a request for
production of documents. On May 26, 2006, EHSS faxed partial answers to the People’s
interrogatories. On June 22, 2006, the People filed a motion to compel answers or responses to
written discovery. EHSS did not file a response to the People’s motion.
On March 31, 2009, the People filed a motion for summary judgment (Mot.). EHSS has
filed no response to the People’s motion for summary judgment. On May 21, 2009, EHSS
indicated to the Hearing officer that EHSS will not file a response to the motion. People v.
Environmental Health and Safety Services, Inc., PCB 05-51, Hearing Officer Order, (May 21,
2009).
PEOPLE’S AMENDED COMPLAINT
The People allege that EHSS conducts asbestos consulting, removal, and disposal
services and is located at 1304 Derby Lane in Rockford. Am. Comp. at 2 (PP4-5). The People
further allege that EHSS is a “person” as the term is defined by the Act. Am
.
Comp. at 5 (P18);
see
415 ILCS 5/3.315 (2008) (definition of “person”). The People also allege that EHSS is an
Illinois corporation in good standing. Am. Comp
.
at 2 (P3).
Count I
The People allege that EHSS contracted with the Lincoln Park School located at 4103
West State Street in Rockford (Facility) to remove and dispose of RACM from the Facility’s
boiler room. Am. Comp. at 2 (P6). The People also allege that asbestos is a “contaminant”
under the Act. Am. Comp. at 6 (P21).
See
415 ILCS 5/3.165 (2008) (definition of
“contaminant”).
The People allege that on December 9, 2002, the Illinois Environmental Protection
Agency (Agency) received a Notification of Demolition and Renovation (Notification) from
EHSS. Am
.
Comp. at 2 (P7). The People also allege that the Notification indicated that asbestos
removal activities were scheduled to occur at the Facility from January 2 until January 24, 2003,
but failed to provide an estimate of the amount of nonfriable asbestos that would not be removed
prior to demolition of the Facility. Am
.
Comp. at 2-3 (P7-8). The People further allege that on
January 7, 2003, the Agency conducted an inspection of the Facility and EHSS informed the
Agency that asbestos removal activities at the Facility had begun on January 6, 2003, two
working days after the starting date scheduled in the Notification. Am. Comp. at 3 (P9-10)
.
The People allege that, on the inspection date and date(s) better known to EHSS,
employees of EHSS removed and then dropped dry friable
3
3
Friable asbestos material
is “any material containing more than 1 percent asbestos . . . that,
when dry, can be pulverized, or reduced to powder by hand pressure.” 40 C.F.R. 61.141.
asbestos containing material (ACM)
insulation from boiler structures, causing visible emissions of ACM. Am. Comp. at 3 (P11).
The People also allege that EHSS’ employees conducted asbestos removal activities “without
4
utilizing a containment area with negative air, decontamination unit, bagout area, or water spray
to control the emissions.”
Id.
The People allege that the Agency inspected one of several bags in the boiler room that
EHSS’ employees utilized to contain ACM and discovered that at least one bag contained dry
friable ACM and “could easily be crushed and crumbled by hand pressure.” Am. Comp. at 3-4
(P12). The People further allege that “neither water nor condensation were visible within at least
one bag.” Am. Comp. at 4 (P12).
The People also allege that the Agency collected three samples of dry friable RACM for
testing: two samples from the boiler room and one sample from an area adjacent to the work
area’s entry door. Comp. at 4 (P13). The People further allege that, on January 24, 2003, the
Agency received test data from EnviroHealth Technologies, Inc., which documented that all
three samples contained concentrations of amosite asbestos from 10% to 30%, with one sample
also containing concentrations of chrysotile asbestos from 10% to 30%. Am. Comp. at 14 (P14).
The People allege that, “[a]s operator of an asbestos removal activity, [EHSS] caused,
threatened or allowed the discharge or emission of asbestos into the environment so as to cause
or tend to cause air pollution” in violation of Section 9(a) of the Act (415 ILCS 5/9(a) (2008))
and 35 Ill. Adm. Code Section 201.401, because EHSS removed dry friable RACM “without
utilizing wet methods or measures to control asbestos emissions.” Am. Comp. at 6 (P22).
Count II
The People allege that EHSS’ removal of asbestos from the Facility constituted a
“renovation” of a “facility” as those terms are defined in Section 61.141 of NESHAP (40 C.F.R.
61.141). Am. Comp. at 10 (P22-23). The People also allege that EHSS was “the operator of a
renovation activity” as that term is defined in Section 61.141 of NESHAP (40 C.F.R. 61.141).
Am. Comp. at 10 (P24). The People further claim that EHSS’ Notification to the Agency stated
that the Facility was to be demolished after removal of 1000 linear feet of RACM from the boiler
room, 630 square feet of RACM from the pipes, and 12,500 square feet of Category I nonfriable
asbestos-containing floor tile. Am. Comp. at 11 (P26). The People allege that, given the amount
of asbestos to be removed, removal activities performed by EHSS at the Facility were subject to
Notification requirements in Sections 61.145(b) and (c), and Section 61.150 of NESHAP (40
C.F.R. 61.145 (b), (c), 61.150). Am. Comp. at 12 (P27).
The People allege that EHSS failed to set forth in the Notification an estimate of the
approximate amount of Category I and Category II nonfriable RACM that would not be removed
from the affected area before demolition of the Facility. Am. Comp. at 12 (P29). The People
further allege that, “by [EHSS’] failure to submit a complete notification in accordance with the
requirements of 40 C.F.R. 61.145(b)(4)(iv),” EHSS “violated section 9.1(d)(1) of the Act, 415
ILCS 5/9.1(d)(1) (2008), and 40 C.F.R. 61.145(b)(4)(iv).” Am. Comp. at 12-13 (P30).
Count III
5
The People allege that EHSS “failed to submit a notification to the Agency revising the
scheduled starting date for asbestos removal prior to the expiration of the original scheduled
starting date of January 2, 2003.” Am. Comp. at 15 (P31). The People further allege that by
EHSS’ “failure to notify the Agency of the new starting date for asbestos removal activity,”
EHSS “violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1) (2008), and 40 C.F.R.
61.145(b)(1) and (3)(iv) (January 17, 2003).” Am. Comp. at 15 (P32).
Count IV
The People allege that EHSS “failed to adequately wet all RACM during asbestos
removal activities within the Facility.” Am. Comp. at 17 (P29). The People further allege that
“in failing to adequately wet the RACM during asbestos removal activities,” EHSS “violated
Section 9.1(d)(1) of the Act, 415 ILCS 5/9(d)(1) (2008), and 40 C.F.R. 61.145(c)(3).” Am.
Comp. at 17 (P30).
Count V
The People allege that EHSS “failed to wet and maintain wet all RACM until collected
and contained prior to disposal” at a permitted waste site. Am. Comp. at 18 (P29). The People
further allege that “[b]y failing to ensure that the RACM and regulated asbestos-containing waste
material remained wet until collected and contained, [EHSS] violated Section 9.1(d)(1) of the
Act, 415 ILCS 5/9.1(d)(1) (2008), and 40 C.F.R. 61.145(c)(6)(i).” Am. Comp. at 19 (P30).
Count VI
The People allege that EHSS failed to adequately wet and keep wet, containerize, and
label all regulated asbestos-containing waste material, “thereby causing or allowing the discharge
of visible emissions” in violation of Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1) (2008),
and 40 C.F.R. 61.150(a)(1). Am. Comp. 20-21 (PP29-30).
Count VII
The People allege that EHSS “failed to dispose of all RACM and asbestos-containing
waste material generated during the renovation as soon as is practical,” in violation of Section
9.1 (d)(1) of the Act, 415 ILCS 5/9.1(d)(1) (2008). Am. Comp. at 22 (P29).
EVIDENCE
In support of their motion for summary judgment, the People have submitted the
affidavits of Dennis Hancock, an Inspector in the Agency’s Bureau of Air (BOA), Jan McDow,
an Office Associate in BOA, and Shannon Coe, an Office Assistant at BOA. In addition, the
People have submitted the affidavit of William J. Lowry, President of EnviroHealth
Technologies, Inc. (EnviroHealth), as part of their motion. These affidavits lay the foundation
for the documents appended to the People’s motion. Therefore, the Board will consider this
evidence in addition to the complaint and answer filed in this matter, and EHSS’ admissions on
file. The Board’s findings of fact which follow are based on these sources.
6
FACTUAL BACKGROUND
EHSS is an asbestos removal contractor located at 1304 Derby Lane in Rockford,
Winnebago County. Ans., Count I, P5; Am. Resp. P8. EHSS was hired by the former Lincoln
Park School to remove 1000 linear feet of RACM from the boiler room, 630 square feet of
RACM from the pipes, and 12,500 square feet of Category I nonfriable asbestos-containing floor
tile from the Facility prior to demolition. Ans., Count I, P6; Mot. Exh. F, Attachment 1. On
December 9, 2002, the Agency received a Notification of the asbestos removal project from
EHSS. Mot. Exh. F (PP8, 10, 11); Mot. Exh. G (PP8-9). According to the Notification, the
project was scheduled to begin on January 2, 2003, and end on January 24, 2003. Mot. Exh. F,
Attachment 1. The Notification did not indicate the amount of nonfriable asbestos that would
not be removed from the Facility prior to demolition. Mot. Exh. F, Attachment 1. Prior to
January 7, 2003, the Agency received no notification from EHSS revising the scheduled start
date for asbestos removal at the Facility. Mot. Exh. F (P12).
On January 7, 2003, Agency inspector Dennis Hancock inspected the Facility and
Oldenberger, EHSS’ President, informed Hancock that asbestos removal activities had
commenced at the Facility on January 6, 2003, two working days after the scheduled starting
date. Mot. Exh. D (P6). At the Facility, Hancock observed EHSS’ employees remove dry
friable RACM from the boiler and drop it on the floor, causing the visible emission of particulate
ACM. Mot. Exh. D (P5). Hancock inspected one of several bags in the boiler room used by
EHSS to contain ACM, and observed that the bag contained ACM and could easily be crushed
by hand. Mot. Exh. D (P11). Hancock also observed that the bag contained no water or
condensation.
Id.
Hancock further observed that there was no evidence of any wet methods or
other measures being used at the Facility to control asbestos emissions. Mot. Exh. D (P5, 10,11).
Specifically, Hancock observed that no water was visible on the ACM, boiler, boiler pipes, or
floor, and dry RACM was visible on the floor.
Id.
Hancock further observed that there was no
containment in the work area, no negative air machine in the area, no bag out area, no
decontamination unit water being used, and no Hudson sprayers. Mot. Exh. D (P5).
During the inspection, Hancock collected two samples of dry friable RACM from the
boiler room, and one sample from the area adjacent to the work area’s entry door. Mot. Exh. D
(P7). On January 24, 2003, the Agency received test data from EnviroHealth documenting that
one of the samples collected by Hancock contained from 10% to 20% chrysotile asbestos
concentration, while all three samples contained from 10% to 30% amosite asbestos
concentration. Mot. Exh. E (P21); Mot. Exh. D (P9).
STATUTORY AND REGULATORY PROVISIONS
Statutory Authorities
Section 3.315 of the Act provides that a “‘[p]erson’ is an 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.” 415 ILCS 5/3.315 (2008).
7
Section 3.165 of the Act provides that a “‘contaminant’ is any solid, liquid or gaseous
matter, an odor, or any form of energy, from whatever source.” 415 ILCS 5/3.165 (2008).
Section 3.115 of the Act provides that “[a]ir 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. 415 ILCS 5/3.115 (2008).
Section 9(a) of the Act provides in pertinent part that 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. 415 ILCS 5/9(a) (2008).
Section 9.1(d)(1) of the Act provides that no person shall “[v]iolate any provisions of
Sections 111, 112, 165, or 173 of the Clean Air Act, as now amended or hereafter amended, or
federal regulations adopted pursuance thereto.” 415 ILCS 5/9.1(d)(1) (2008).
Section 112 of the Clean Air Act provides that asbestos is a “hazardous air pollutant.” 42
U.S.C. § 7412(b)(1) (2008); 40 C.F.R. § 61.01(a).
Federal Regulations
The Code of Federal Regulations provides the following definitions at 40 C.F.R.
61.141:
Asbestos
means the asbestiform varieties of serpentinite (chrysotile), riebeckite
(crocidolite), cummingtonite-grunerite, anthrophyllite and actinolite-tremolite.
Category I nonfriable asbestos-containing material (ACM)
means asbestos-
containing packagings, gaskets, resilient floor covering, and asphalt roofing
products containing more than 1 percent asbestos as determined using methods
specified in appendix E, subpart E, 40 C.F.R. part 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 E, 40 C.F.R. part 763, section 1, Polarized Light
Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder
by hand pressure.
Facility
means any institutional, commercial, public, industrial, or residential
structure, installation, or building (including any structure, installation, or
8
building containing condominiums or individual dwelling units operated as a
residential cooperative, but excluding residential buildings having four or few
dwelling units); any ship; and any active or inactive waste disposal site. For
purposes of this definition, any building, structure, or installation that contains a
loft used as a dwelling is not considered a residential structure, installation or
building. Any structure, installation or building that was previously subject to this
subpart is not excluded, regardless of its current use or function.
Friable asbestos material
means any material containing more than 1 percent
asbestos as determined using the method specified in appendix E, subpart E, 40
C.F.R. Part 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
facility being demolished or renovated or any person who owns, leases, operates,
controls, or supervises the demolition or renovation operation, or both.
Demolition
means the wrecking or taking out of any load-supporting structural
member of a facility together with any related handling operations or any
intentional burning of 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.
Regulated asbestos-containing material (RACM)
means (a) Friable asbestos
material, (b) Category 1 nonfriable ACM that has become friable, (c) Category 1
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.
Remove
means to take out RACM or facility components that contain or are
covered with RACM from any facility.
The Code of Federal Regulations provides at 40 C.F.R. 61.145:
(a)
Applicability. To determine which requirements of paragraph (a), (b), and
(c) of this section apply to the owner or operator of a demolition or
9
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 paragraph (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.
* * *
(b)
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:
* * *
(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
10
(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.
* * *
(4)
Include the following in the notice:
* * *
(vi)
Estimate of the approximate amount of RACM 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 the 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 removed before demolition.
* * *
(c)
Procedures for asbestos emission control. Each owner or operator of a
demolition or renovation activity to whom this paragraph applies,
according to paragraph (a) of this section, shall comply with the following
procedures:
* * *
(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 s 61.150.
The Code of Federal Regulations provides at 40 C.F.R. 61.150 that:
Each owner or operator of any source covered under the provisions of §§ 61.144, 61.145,
61.146, and 61.147 shall comply with the following provisions:
(a)
Discharge no visible emissions to the outside air during the collection,
processing (including incineration), packaging, or transporting of any
asbestos-containing waste material generated by the source, or use one of
the emission control and waste treatment methods specified in paragraphs
(a)(1) through (4) of this section.
11
(1)
Adequately wet asbestos-containing waste material as follows:
* * *
(b)
All asbestos-containing waste material shall be deposited as soon as is
practical by the waste generator at:
(1)
A waste disposal site operated in accordance with the provisions of
Section 61.145.
Board Regulations
Section 201.141 of the Board’s Air Pollution Regulations provides in pertinent part that
no person shall “cause or threaten or allow the discharge of 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 . . . .” 35 Ill. Adm. Code 201.141.
Civil Penalty Provisions
Section 33(c) of the Act provides in its entirety that
(c)
In making its orders and determinations, the Board shall take into
consideration all the facts and circumstances bearing upon the
reasonableness of the emissions, discharges or deposits involved
including, but not limited to:
(i)
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of
the people;
(ii)
the social and economic value of the pollution source;
(iii)
the suitability or unsuitability of the pollution source to the area in
which it is located, including the question of priority of location in
the area involved;
(iv)
the technical practicability and economic reasonableness of
reducing or eliminating the emissions, discharges or deposits
resulting from such pollution source; and
(v)
any subsequent compliance. 415 ILCS 5/33(c) (2008)
Section 42(h) of the Act provides that:
12
In determining the appropriate penalty to be imposed . . . the Board is authorized
to consider any matters of record in mitigation or aggravation of penalty,
including but not limited to the following factors:
(i)
the duration and gravity of the violation;
(ii)
the presence or absence of due diligence on the part of the
respondent in attempting to comply with requirements of this Act
and regulations thereunder or to secure relief therefrom as
provided by this Act;
(iii)
any economic benefits accrued by the respondent because of delay
in compliance with requirements, in which case the economic
benefits shall be determined by the lowest cost alternative for
achieving compliance;
(iv)
the amount of monetary penalty which will serve to deter further
violations by the respondent and to otherwise aid in enhancing
voluntary compliance with this Act by the respondent and other
persons similarly subject to the Act;
(v)
the number, proximity in time, and gravity of previously
adjudicated violations of the Act by the respondent;
(vi)
whether the respondent voluntarily self-disclosed, in accordance
with subsection (i) of this Section, the non-compliance to ; and
(vi)
whether the respondent has agreed to undertake a “supplemental
environmental project,” which means an environmentally
beneficial project that a respondent agrees to undertake in
settlement of an enforcement brought under this Act, but which the
respondent is not otherwise legally required to perform. 415 ILCS
5/42(h) (2008)
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483,
693 N.E. 2d 358, 370 (1998);
see
35 Ill. Adm. Code 101.516(b) (Motions for Summary
Judgment). In ruling on a motion for summary judgment, the Board “must consider the
pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing
party.” Dowd & Dowd, 693 N.E.2d at 370 (1998).
Summary judgment “is a drastic means of disposing of litigation,” and therefore it should
be granted only when the movant’s right to relief “is clear and free from doubt.” Dowd & Dowd,
13
693 N.E. 2d at 370 (1998), citing Purtill v. Hess, 111 Ill. 2d 299, 240, 489 N.E. 2d 867, 871
(1986). However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must “present a factual basis which would arguably entitle [it] to judgment.”
Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist. 1994).
PEOPLE’S MOTION FOR SUMMARY JUDGMENT
In their motion for summary judgment, the People argue that “the complaint and answer
filed in this matter, and [EHSS’] admissions on file, together with the affidavits supporting the
People’s motion, establish all material facts necessary to prove liability on all counts of the
amended complaint.” Mot. at 2. The People further argue that, “because there is no genuine
issue of material fact,” the People are “entitled to judgment as a matter of law.” Mot. at 3;
see
35
Ill. Adm. Code 101.516(b).
The Board’s procedural rules provide that, “within 14 days after service of a motion, a
party may file a response to the motion. If no response is filed, the party will be deemed to have
waived objection to the granting of the motion, but the waiver of objection does not bind the
Board . . . in its disposition of the motion.” 35 Ill. Adm. Code 101.500(d). EHSS’ failure to
respond to the motion for summary judgment has resulted in EHSS waiving any objection to the
Board’s granting of the motion.
DISCUSSION
Below, the Board reviews the motion and the evidence and arguments offered in support
of the motion before making findings and reaching the conclusions of the Board.
Count I
The record demonstrates that EHSS caused, threatened or allowed the discharge or
emission of asbestos into the environment so as to cause or tend to cause air pollution.
Specifically, the record shows that EHSS contracted with Lincoln Park School located at 4103
West State Street in Rockford to remove and dispose of RACM from the Facility’s boiler room.
The record also shows that on December 9, 2002, the Agency received a Notification from EHSS
which indicated that asbestos removal activities were scheduled to occur at the Facility from
January 2 until January 24, 2003, but did not provide an estimate of the amount of nonfriable
asbestos that would not be removed during demolition of the Facility.
The record further shows that on January 7, 2003, the Agency conducted an inspection of
the Facility and EHSS informed the Agency that asbestos removal activities at the Facility had
begun on January 6, 2003, two working days after the starting date scheduled in the Notification.
The record demonstrates that EHSS did not amend the date in the Notification prior to
commencing asbestos removal activities.
The record also demonstrates that, on the inspection date, the Agency observed EHSS’
employees remove and then drop dry friable asbestos containing insulation from one boiler and
boiler pipes, causing visible emissions of particulate ACM. The record further demonstrates that
14
EHSS’ employees conducted asbestos removal activities without utilizing any technology to
prevent emission of asbestos particles into the outside air, such as a containment area with
negative air, decontamination unit, bagout area, or Hudson sprayers to control the emissions.
The record shows that the Agency inspected one of several bags in the boiler room that
EHSS’ employees used to contain boiler insulation and discovered that at least one bag contained
dry friable ACM. The Agency observed that the RACM could easily be crushed and crumbled
by hand pressure and no water or condensation was visible within the bag.
In addition, the record demonstrates that the Agency collected three samples of dry
friable RACM during the inspection: two samples from inside the boiler room, and another from
the area adjacent to the entry door to the work area. Test data demonstrate that all three samples
contained concentrations of 10%-30% amosite asbestos, while one sample also contained
chrysotile asbestos from 10-20%.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count I.
See
35 Ill. Adm. Code 101.516(b). Consequently, the Board grants the People’s
motion for summary judgment as to Count I and finds that EHSS violated Section 9(a) of the
Act, 415 ILCS 5/9(a) (2008)), and 35 Ill. Adm. Code Section 201.401.
Count II
The record shows that EHSS failed to provide a complete Notification of Demolition and
Renovation to the Agency, as required by the NESHAP for asbestos. Specifically, the record
demonstrates that the Agency received a Notification from EHSS stating that EHSS was going to
remove 1000 linear feet of RACM from pipes, 630 square feet of RACM from the boilers, and
12,500 square feet of RACM Category I nonfriable asbestos containing floor tiles from the
Facility. The record also demonstrates that EHSS failed to set forth in the Notification an
estimate of the approximate amount of Category I and Category II nonfriable RACM that would
not be removed from the affected area before demolition of the Facility. The record further
demonstrates that EHSS, as an asbestos removal contractor, was an operator of a demolition and
renovation activity at the Facility.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count II. Consequently, the Board grants the People’s motion for summary judgment as
to Count II and finds that EHSS violated section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2008) and 40 C.F.R. 61.145(b)(4)(iv).
Count III
The record demonstrates that EHSS failed to timely notify the Agency of the new start
date of asbestos removal activities at the Facility, as required by the NESHAP for asbestos.
15
Specifically, the record shows that EHSS did not submit a notification to the Agency revising the
scheduled starting date for asbestos removal prior to the expiration of the original scheduled
starting date of January 2, 2003. The record also shows that EHSS commenced asbestos removal
activities at the site on January 6, 2003, instead of the scheduled date.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count III. Consequently, the Board grants the People’s motion for summary judgment as
to Count III and finds that EHSS violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2008) and 40 C.F.R. 61.145(b)(1) and (3)(iv).
Count IV
The record demonstrates that EHSS failed to adequately wet all RACM during asbestos
removal activities within the Facility. Specifically, the record shows that during the agency’s
inspection, EHSS’ employees were not using any water. The record also shows that the Agency
observed that there was no water visible on the ACM, boiler, boiler pipes, or on the floor. The
record further shows that dry ACM material was visible on the boiler room floor.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count IV. Consequently, the Board grants the People’s motion for summary judgment as
to Count IV and finds that EHSS violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9(d)(1)
(2008), and 40 C.F.R. 61.145(c)(3).
Count V
The record demonstrates that EHSS failed to adequately wet all RACM until collection.
Specifically, the record shows that EHSS did not use water at the Facility during asbestos
removal activities. Accordingly, the record demonstrates that EHSS failed to wet and maintain
wet all RACM and regulated asbestos-containing waste material until collected and contained
prior to disposal at a permitted waste site.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count V. Consequently, the Board grants the People’s motion for summary judgment as
to Count V and finds that EHSS violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2008), and 40 C.F.R. 61.145(c)(6)(i).
Count VI
The record demonstrates that EHSS failed to adequately wet and keep wet, containerize,
and label all asbestos-containing waste materials. Specifically, the record shows that, upon the
16
Agency’s request, EHSS’ employees provided a bag containing RACM to the Agency inspector.
The record further shows that the bag did not contain moisture and that the material in the bag
could easily be crumbled by hand. The record also shows that the bag was not labeled with an
OSHA-specific label. Further, the record demonstrates that the asbestos removal conditions at
the Facility resulted in the discharge of visible asbestos emissions.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count VI. Consequently, the Board grants the People’s motion for summary judgment as
to Count VI and finds that EHSS violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2008), and 40 C.F.R. 61.150(a)(1).
Count VII
The record shows that EHSS failed to dispose of all RACM and asbestos-containing
waste material generated during the renovation as soon as practical. The record demonstrates
that the Agency inspector observed bags containing RACM removed from facility components
being stored within the building.
The Board finds that the complaint and answer filed in this matter, EHSS’ admissions on
file, together with the affidavits supporting the People’s motion, are sufficient to prove that there
are no genuine issues of material fact and that the People are entitled to judgment as a matter of
law on Count VII. Consequently, the Board grants the People’s motion for summary judgment
as to Count VII and finds that EHSS violated Section 9.1 (d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2008).
Remedies
Pursuant to the Board’s September 16, 2004 order accepting the complaint for hearing
and January 6, 2005 order accepting the amended complaint for hearing, the People propose a
remedy for EHSS’ violations. Mot. at 23.
Section 33(c)
In addressing the first factor at Section 33(c) of the Act (415 ILCS 5/33(c) (2008)), the
People argue that “[t]he impact to the public resulting from [EHSS’] failure to utilize work
practice standards prescribed by the asbestos NESHAP during asbestos removal activities
resulted in the emission of asbestos, a known carcinogen, which threatened . . . workers on site
and the nearby neighborhood.” Mot. at 25. The People further argue that EHSS’ failure to state
the amount of asbestos that would not be removed from the Facility or notify the Agency that
removal activities commenced on January 6, 2003, resulted in a situation where the Agency and
the public “were not privy to information that is important to the control of air pollution in
Illinois.” Mot. at 25. The Board finds that the emission of asbestos, and EHSS’ failure to notify
the Agency of the scope and starting date of asbestos removal activities resulted in a significant
“injury to or interference with the protection of the health, general welfare, and physical property
17
of the people.”
See
415 ILCS 5/33(c)(1) (2008). As such, the Board weighs this factor in favor
of imposing remedies sought by the People.
Regarding the “social and economic value of the pollution source,” the People claim that
the site of the Facility “has potential social and economic value in the event that the land is sold
and developed as commercial property.” Mot. at 25;
see
415 ILCS 5/33(c) (2). The Board
declines to weigh this factor in favor of or against the remedies sought by the People because the
record does not indicate the potential value of the land. Further, EHSS is not the owner of the
Facility, and there is no evidence that EHSS would benefit from the sale. The Board also
allocates no weight to “the suitability or unsuitability of the pollution source to the area in which
it is located,” agreeing instead with the People’s assertion that this factor “is not an issue in this
matter,” given that the violations resulted from EHSS’ improper handling and disposal of RACM
at the Facility.
The People also argue that “[c]omplying with the applicable provisions of the Act, the
Board’s Air Pollution Regulations and the NESHAP for asbestos was both technically
practicable and economically reasonable” in this case. Mot. at 25;
see
415 ILCS 5/33(c) (4)
(2008). The People further argue that EHSS “failed to take even the most minimal actions
necessary to control asbestos emissions . . . .” Mot. at 25. EHSS has not opposed this argument,
and the Board finds that this factor weighs in favor of imposing remedies sought by the People.
In addressing the final factor, subsequent compliance, the People state that EHSS has
subsequently complied with the Act, the Board’s regulations, and the NESHAP for asbestos.
Mot. at 26;
see
415 ILCS 5/33(c) (5) (2008). The Board finds that this factor weighs in favor of
EHSS.
On the basis of the record, the Board finds that the Section 33(c) factors weigh in favor of
granting relief requested by the People, including assessing a civil penalty. In reaching this
finding, the Board places considerable emphasis on the impact of the emission of asbestos upon
the people’s health, general welfare, and property. To determine the appropriate penalty amount,
the Board considers factors listed in Section 42(h) of the Act.
S
ee 415 ILCS 5/42(h) (2008).
Section 42
The People note that, under Section 42(a) of the Act, violators are liable for a civil
penalty of up to $50,000 for each violation and an additional penalty of $10,000 for each day that
the violations continue. Mot. at 26;
see
415 ILCS 5/42(a) (2008). The People argue that, if the
Board finds that EHSS committed the nine violations alleged in the complaint and that four of
those violations continued at least seventeen days, then the maximum penalty authorized by
Section 42(a) is $1,130,000, as follows:
Count I
1 violation of Section 9(a)
$50,000
1 violation of Section 201.141
$50,000
Count II
18
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(b)(iv)(6) $50,000
Count III
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(b)(1)
$50,000
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(b)(3)(iv) $50,000
Count IV
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(c)(3)
$50,000
1 violation continuing 17 days
$170,000
Count V
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(c)(6)(i) $50,000
1 violation continuing 17 days
$170,000
Count VI
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(a)(1)
$50,000
1 violation continuing 17 days
$170,000
Count VII
1 violation of Section 9.1(d)(1)/ 40 C.F.R. 61.145(b)(1)
$50,000
1 violation continuing 17 days
$170,000
Mot. at 26-27, citing 415 ILCS 5/42(a) (2008).
With respect to the aggravating and mitigating factors that the Board weighs in
determining the appropriate civil penalty (
see
415 ILCS 5/42(h) (2008)), the People first argue
that for a period beginning on at least January 7, 2003, “[EHSS] caused or threatened air
pollution exposing persons . . . to the severe health effects of carcinogenic asbestos fibers . . . .”
Mot at 29;
see
415 ILCS 5/42(h)(1) (2008). The Board notes that the People indicate that, on
August 25, 2003, the Agency received information that asbestos removal activities at the site
were not completed until August 14, 2003. Based on the duration and gravity of the violation,
the Board weighs this factor against EHSS.
On the issue of EHSS’ diligence, the People claim that “[EHSS] did not act diligently in
this matter.” Mot. at 29;
see
415 ILCS 5/42(h)(2) (2008). Specifically, the People allege that
EHSS “failed to ensure that all asbestos containing material was properly removed, wetted,
maintained wet, sealed in a leak-proof container, and transported to a waste disposal site
permitted to receive such waste.”
Id.
The People also allege that EHSS “failed to inform the
Illinois EPA that the asbestos removal activities commenced on January 6, 2003,” rather than the
January 2, 2003 date listed in the Notification.
Id.
The People further allege that the
Notification “did not state the amount of asbestos that would not be removed during demolition
of the building.”
Id.
This claim is supported by the record, and EHSS has not opposed it.
Therefore, the Board weighs this factor against EHSS.
19
The People argue that “[r]espondent received an economic benefit by failing to properly
conduct asbestos removal activities,” but acknowledge that “[i[t is unclear the extent of this
economic benefit.” Mot. at 29;
see
415 ILCS 5/42(h)(3) (2008). The People maintain that EHSS
“delayed or avoided costs associated with the proper removal of RACM” through non-
compliance.
Id.
However, since the record contains no evidence that EHSS received an
economic benefit from non-compliance, the Board declines to weigh this factor against EHSS.
In addition, the People state that EHSS “has had no previously adjudicated violations of
the pertinent laws and regulations.” Mot. at 30;
see
415 ILCS 5/42(h)(5)(2008). The Board
weighs this factor in favor of EHSS.
With regard to self disclosure, the People state that “self disclosure is not at issue in this
matter.” Mot. at 30;
see
415 ILCS 5/42(h)(6) (2008). The Board agrees, and does not weigh this
factor in favor of or against EHSS.
The People also state that EHSS “has not offered to perform a supplemental
environmental project.” Mot. at 30;
see
415 ILCS 5/42(h)(7) (2008). The record shows no
evidence of such an offer and the Board finds this factor weighs neither for nor against EHSS.
Finally, on the issue of deterrence, the People argue that $56,500, or 5% of the maximum
civil penalty of $1,130,000 “will serve to deter future violations by [EHSS] and to otherwise aid
in enhancing voluntary compliance . . . .” Mot. at 30;
see
415 ILCS 5/42(h)(4) (2008). EHSS
has offered no facts or arguments to dispute this conclusion.
The Board finds that the Section 42(h) factors justify the imposition of a $56,500 penalty
on EHSS as proposed by the People.
See
People v. Ogoco, Inc., PCB 06-16, slip op. at 10 (Sept.
21, 2008) (imposing People’s unopposed penalty request), citing People v. J&F Hauling, Inc.,
PCB 02-21 (Feb. 6, 2003). In reaching this finding, the Board places particular weight on the
duration and gravity of the violation and on EHSS’ lack of diligence in attempting to comply
with the Act and the Board’s regulations.
In their amended complaint, the People’s request for relief included “[r]equiring [EHSS]
to pay all costs of this proceeding pursuant to Section 42(f) of the Act [415 ILCS 5/42(f) (2008)],
including expert witness, consultant, and attorney fees” expended by the State in pursuit of this
action. Am. Comp. at 6, 13, 16, 17, 19, 21, 23. The People did not renew this request in their
motion for summary judgment.
S
ee Mot. at 23-30 (Remedy). As the record includes no amount
for these costs and fees and no argument that the violations were “willful, knowing, or repeated”
(415 ILCS 5/42(f) (2008)), the Board declines to grant this relief.
CONCLUSION
The Board finds that there is no genuine issue of material fact and grants the People’s
unopposed motion for summary judgment. The Board therefore finds that EHSS violated the
Act, the Board’s regulations, and the NESHAP for asbestos as alleged in the seven counts of the
amended complaint and imposes the People’s requested civil penalty of $56,500 on EHSS. In
addition, the Board requires EHSS to cease and desist from further violations of the Act, the
20
Board’s regulations, and the NESHAP for asbestos. However, the Board declines to order EHSS
to pay costs or fees.
This opinion constitutes the Board’s findings of fact and conclusions of law.
ORDER
1.
The Board grants the Office of the Attorney General, on behalf of the People of
the State of Illinois, summary judgment on all seven counts of the amended
complaint as alleged against Environmental Health and Safety Services, Inc.
(EHSS). The Board thus finds that EHSS has violated Sections 9(a) and 9.1(d)(1)
of the Act (415 ILCS 5/9(a) and 9.1(d)(1) (2008)); 35 Ill. Adm. Code 201.141;
and 40 C.F.R. 61.145(b)(1), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and
61.150(a)(1) and (b).
2.
EHSS must pay a civil penalty of $56,500.00 no later than Monday, August 24,
2009, which is the first business day after 30 days from the date of this order.
Such payment must be made by certified check, money order, or electronic
transfer of funds, payable to the Environmental Protection Trust Fund. The case
number, case name, and EHSS’ social security number or federal employer
identification number must be included on the certified check or money order.
3.
EHSS must send the certified check, money order, or confirmation of electronic
funds transfer to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276 Springfield, Illinois 62794-9276
4.
Penalties unpaid within the time prescribed will accrue interest under Section
42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2008)) at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2008)).
5.
EHSS must cease and desist from further violations of the Act and the Board’s
regulations.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2008);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
21
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on July 23, 2009, by a vote of 5-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
