3

operation, if there was asbestos present, the dates of asbestos removal,

the date of the demolition, and the procedure used to detect the presence

of asbestos. Mot. at 10, Exh. E.

 

7. The notification for 4305 West 24th Place failed to indicate the

procedure used to detect the presence of asbestos. Mot. at 10, Exh. A.

 

8. The notification for 5650 South Ashland Avenue failed to indicate the

procedure used to detect the presence of asbestos. Mot. at 10, Exh. B.

 

9. On March 20, 1997, the Agency received a notification from Decicco for

the demolition of a structure at 2908 West Madison Street. The

notification failed to indicate the procedure used to detect the presence of

asbestos. Mot. at 10-11, Exh. F.

 

The Board finds that the above facts concerning Decicco are admitted. Accordingly,

the Board discusses if the People are entitled judgment as a matter of law based on the

admitted facts.

 

MOTION FOR SUMMARY JUDGMENT

 

Decicco has not yet filed a response to the motion for summary judgment, and,

according to a hearing officer order of February 5, 2002, Decicco has no intention of doing so.

 

Standard of Review

 

Summary judgment is appropriate when the pleadings and depositions, together with

any affidavits and other items in the record, show that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.

See

Dowd & Dowd, Ltd.

v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998). 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, 181 Ill. 2d at 483, 693 N.E.2d at 370.

 

Summary judgment “is a drastic means of disposing of litigation,” and therefore it

should only be granted when the movant’s right to the relief “is clear and free from doubt.”

Dowd, 181 Ill. 2d at 483, 693 N.E.2d at 370, citing Purtill v. Hess, 111 Ill. 2d 229, 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 a

judgment.” Gauthier v. Westfall, 266 Ill. App. 3d 213, 219, 639 N.E.2d 994, 999 (2nd Dist.

1994).

 

 

 

 

---

 

4

Discussion

 

Relevant Statues and Regulations

 

 

Section 9.1(d)(1) of the Act states, that “No person shall: Violate any

provisions of Sections 111, 112, 165, or 173 of the Clean Air Act, as now or hereafter

amended, or federal regulations adopted pursuant thereto”. 415 ILCS 5/9(d)(1) (2000).

 

The United States Environmental Protection Agency (USEPA) has adopted the

asbestos NESHAP regulations pursuant to Section 112 of the Clean Air Act (42 U.S.C.

§ 7412 (2001

))

.

 

The relevant asbestos NESHAP regulations are at 40 C.F.R. § 61.141 and 40 C.F.R. §

64.145(a) and (b) (2000). Those regulations provide, in pertinent part:

 

40 C.F.R. § 61.141 Definitions

* * *

Category I nonfriable asbestos-containing material (ACM) means asbestos-

containing packings, gaskets, resilient floor covering, and asphalt roofing

products 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.

 

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 CFR part 763, section 1,

Polarized Light Microscopy that, when dry, cannot be crumbled, pulverized, or

reduced to powder by hand pressure.

* * *

Demolition means the wrecking or taking out of any 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 of its current use or function.

* * *

---

 

5

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 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.

* * *

Working day means Monday through Friday and includes holidays that fall on

any of the days Monday through Friday.

* * *

40 C.F.R. § 61.145 Standard for demolition and renovation

 

(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

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:

* * *

(2) In a facility being demolished, only the notification requirements

of paragraphs (b)(1), (2), (3)(i) and (iv), and (4)(i) through (vii)

and (4)(ix) and (xvi) of this section apply, if the combined

amount of RACM is

 

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

than 15 square meters (160 square feet) on other facility

components, and

 

(ii) Less than one cubic meter (35 cubic feet) off facility

components where the length or area could not be

measured previously or there is no asbestos.

* * *

(b) Notification requirements. Each owner or operator of a demolition or

renovation activity to which this section applies shall:

 

---

 

6

(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:

 

(i) At least 10 working days before asbestos stripping or

removal work or any other activity begins (such as site

preparation that would break up, dislodge or similarly

disturb asbestos material), if the operation is described in

paragraphs (a) (1) and (4) (except (a)(4)(iii) and (a)(4)(iv))

of this section. If the operation is as described in

paragraph (a)(2) of this section, notification is required 10

working days before demolition begins.

* * *

(4) Include the following in the notice:

 

(i) An indication of whether the notice is the original or a

revised notification.

***

(iii) Type of operation: demolition or renovation.

***

(v) Procedure, including analytical methods, employed to

detect the presence of RACM and Category I and

Category II nonfriable ACM.

 

(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 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.

***

(viii) Scheduled starting and completion dates of asbestos

removal work (or any other activity, such as site

preparation that would break up, dislodge, or similarly

disturb asbestos material) in a demolition or renovation;

planned renovation operations involving individual

nonscheduled operations shall only include the beginning

and ending dates of the report period as described in

paragraph (a)(4)(iii) of this section.

---

 

7

 

* * *

(ix) Scheduled starting and completion dates of demolition or

renovation.

* * *

 

Count I: Untimely Notifications

 

 

Complainant alleged that Decicco violated Section 9.1(d) of the Act and Section

61.145(b) of the asbestos NESHAP. Specifically, the complaint stated that Decicco violated

the Act and the asbestos NESHAP by submitting untimely NESHAP notifications to the

Agency. Mot. at 2.

 

Decicco is an owner/operator of a demolition activity as those terms are defined in the

asbestos NESHAP. The structures at issue in Count I (4305 West 24th Place, 5650 South

Ashland Avenue, 2910 West Madison Street) are facilities as defined by the asbestos

NESHAP. The requirements of the asbestos NESHAP at 61.145(b) apply to facility

demolitions even where there is no asbestos, which is what Decicco indicated on the NESHAP

notifications.

See

40 C.F.R. § 61.145(a)(2) (2000). Section 61.145(b)(3) requires such notice

“[a]t least 10 working days before demolition begins”. Decicco did not submit the notice to

the Agency at least 10 working days before the demolitions were to commence for the three

facilities cited in count I.

 

 

The Board finds, in light of these facts, that Decicco violated Section 61.145(b) of the

asbestos NESHAP. As USEPA adopted the asbestos NESHAP regulations pursuant to Section

112 of the Clean Air Act, the Board finds that Decicco also violated Section 9.1(d)(1) of the

Act.

 

Count II: Incomplete Notifications

 

 

Complainant alleged that Decicco violated Section 9.1(d)(1) of the Act and Section

61.145(b)(4) of the asbestos NESHAP by neglecting to include required information in

NESHAP notifications sent to the Agency. Mot. at 11.

 

The structures at issue in count II (4305 West 24th Place, 5650 South Ashland Avenue,

911-919 West 69th Street, 3353-3355 West Chicago Avenue, 2908 West Madison Street) are

facilities as defined by the asbestos NESHAP.

 

Section 61.145(b)(4)(i) of the asbestos NESHAP states that the notification must

indicate if it is original or revised. The notifications for 911-919 West 69th Street and 3353-

3355 West Chicago Avenue did not indicate if the notifications submitted were original,

revised, or cancelled. The Board finds that Decicco has violated Section 61.145(b)(4)(i) of the

asbestos NESHAP and Section 9.1(d)(1) of the Act.

 

---

 

8

Section 61.145(b)(4)(iii) of the asbestos NESHAP states that the notification must

indicate the type of operation – demolition or renovation. The notifications for 911-919 West

69th Street and 3353-3355 West Chicago Avenue did not indicate if the notifications were for

demolitions or renovations. The Board finds that Decicco has violated Section

61.145(b)(4)(iii) of the asbestos NESHAP and Section 9.1(d)(1) of the Act.

 

Section 61.145(b)(4)(v) of the asbestos NESHAP states that the notification must

indicate the procedure, including analytical methods, employed to detect the presence of

RACM and Category I an II nonfriable ACM. The notifications for 4305 West 24th Place,

5650 South Ashland Avenue, 911-919 West 69th Street, 3353-3355 West Chicago Avenue, and

2908 West Madison Street did not indicate these methods. The Board finds that Decicco has

violated Section 61.145(b)(4)(v) of the asbestos NESHAP and Section 9.1(d)(1) of the Act.

 

Section 61.145(b)(4)(ix) of the asbestos NESHAP states that the notification must

indicate the starting and ending dates of demolition or renovation. The notifications for 911-

919 West 69th Street and 3353-3355 West Chicago Avenue did not indicate the starting and

ending dates for either demolition or renovation. The Board finds that Decicco has violated

Section 61.145(b)(4)(ix) of the asbestos NESHAP and Section 9.1(d)(1) of the Act.

 

Section 61.145(b)(4)(viii) of the asbestos NESHAP states that the notification must

indicate the starting and ending dates of asbestos removal work “or any other activity, such as

site preparation that would break up, dislodge or similarly disturb asbestos material”. As

alleged, the notifications for 911-919 West 69th Street and 3353-3355 West Chicago Avenue

did not indicate the starting and ending dates for either asbestos removal or the other associated

activities. However, these notifications indicated that there was no asbestos to be removed. In

situations where the amount of RACM small to nonexistent, Section 61.145(b)(4)(viii) of the

notification requirements does not apply. The Board finds that Decicco did not violate Section

61.145(b)(4)(viii).

 

Decicco neglected to indicate if there was asbestos present on the notifications for 911-

919 West 69th Street and 3353-3355 West Chicago Avenue. The Board can find nothing in the

asbestos NESHAP notification requirements requiring the owner or operator to indicate if

asbestos is present. Section 61.145(b)(4)(vi) mandates that owner/operator estimate the

amount of RACM to be removed from the facility in addition to Category I and II nonfriable

ACM not to be removed. However, Decicco answered this question on the Agency’s

notification form. Since the Board can find no requirement in the asbestos NESHAP requiring

an owner or operator to indicate if asbestos is present on the notification form, the Board finds

that Decicco is not in violation of Section 61.145(b)(4)(vi) of the asbestos NESHAP.

    

CONCLUSION

 

 

The Board deems admitted the material allegations set forth in the complaint in this

matter. The Board finds that complainant is entitled to summary judgment in its favor as a

matter of law on all of the alleged violations except those involving (1) failure to indicate the

---

 

9

starting and ending dates of asbestos removal work in addition to related activities, and (2)

failure to indicate if asbestos was present.

 

The Board finds that Decicco violated Section 9.1(d)(1) of the Act and Sections

61.145(b)(3), 61.145(b)(4)(i), 61.145(b)(4)(iii), 61.145(b)(4)(v), and 61.145(b)(4)(ix) of the

asbestos NESHAP regulations. The Board also finds that Decicco may be liable for all costs,

pursuant to 42(f) of the Act, including attorney, expert witness, and consultant fees, expended

by the State in pursuit of this action against Decicco.

 

The Board directs the parties to hearing as expeditiously as practicable on the specific

issue of the appropriate penalty amount, costs, and attorneys’ fees in this matter. The parties

are only to present testimony and evidence that are relevant to the factors as set forth in

Sections 33(c), 42(f), and 42(h) of the Act (415 ILCS 5/33(c), 42(f), (h) (2000)).

 

In summary,

 

1. The Board grants complainant’s motion for summary judgment, and finds

Decicco in violation of Section 9.1(d)(1) of the Act (415 ILCS 5/9.1(d)(1)

(2000)), and Sections 61.145(b)(3), 61.145(b)(4)(i), 61.145(b)(4)(iii),

61.145(b)(4)(v), and 61.145(b)(4)(ix) of the asbestos NESHAP (40 C.F.R. §§

61.145(b)(3), 61.145(b)(4)(i), 61.145(b)(4)(iii), 61.145(b)(4)(v), and

61.145(b)(4)(ix) (2000)).

 

2. The Board orders Decicco to cease and desist from further violations of Section

9.1(d)(1) of the Act (415 ILCS 5/9.1(d)(1) (2000)), and Sections 61.145(b)(3),

61.145(b)(4)(i), 61.145(b)(4)(iii), 61.145(b)(4)(v), and 61.145(b)(4)(ix) of the

asbestos NESHAP (40 C.F.R. §§ 61.145(b)(3), 61.145(b)(4)(i),

61.145(b)(4)(iii), 61.145(b)(4)(v), and 61.145(b)(4)(ix) (2000)).

 

3. The Board directs the parties to hearing on the specific issue of the appropriate

penalty amount, costs, and attorneys’ fees in this matter. The parties are only to

present testimony and evidence that are relevant to the factors and costs that are

set forth in Sections 33(c), 42(f) and 42(h) of the Act (415 ILCS 5/33(c), 42(f),

(h) (2000)). The Board directs the parties to provide specific figures for

proposed penalties and proposed justification for such figures.

 

IT IS SO ORDERED.

---

 

10

 

 

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the

Board adopted the above interim order on April 18, 2002, by a vote of 6-0.

 

 

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board