ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL MATTERS
MOTION FOR SUMMARY JUDGMENT
Standard of Review

January 9, 2003

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

JOE DECICCO DEMOLITION, INC., an

Illinois corporation,

INTERIM OPINION AND ORDER OF THE BOARD (by N.J. Melas):

On December 2, 2002, complainant, Office of the Attorney General, on behalf of the

People of the State of Illinois (People), filed a motion for summary judgment (Mot.) against

respondent, Joe Decicco Demolition, Inc. (Decicco). The People filed a two-count complaint on

December 29, 1999, alleging that Decicco submitted untimely and incomplete notifications to the

Illinois Environmental Protection Agency (Agency) for demolition projects in Chicago, Cook

County. The People allege that as a result, Decicco violated the Environmental Protection Act

(Act) (415 ILCS 5.et seq. (2000)

amended by

P.A. 92-0574, eff. June 26, 2002) and the National

Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos (40 C.F.R. § 61.141

and 61.145 (2000)).

As discussed below, the Board grants the People’s motion for summary judgment against

Decicco in part and denies it in part, and directs the parties to hearing on the issues of remedy,

including penalty, and the People’s costs and attorney fees. Before addressing the motion for

summary judgment, the Board discusses preliminary procedural matters.

PROCEDURAL MATTERS

The People filed a motion for summary judgment previously against Decicco on

November 19, 2001. The Board granted the People’s motion in an interim opinion and order

dated April 18, 2002. The People subsequently filed a motion for clarification on April 26, 2002,

asking if the changes in procedural rules, effective January 1, 2001, applied to the People and

Decicco’s failure to answer. Under the new procedural rule, if a respondent fails to answer a

complaint, the material allegations of the complaint are deemed admitted, rather than denied.

See

35 Ill. Adm. Code 103.204(d). On May 16, 2002, the Board found that the former

procedural rules applied and that Decicco denied the complaint’s material allegations by

operation of the former rule. Accordingly, the Board then rescinded its interim order of April 18,

2002, denied the People’s November 19, 2001 motion for summary judgment, and directed the

parties to hearing.

The People served the request to admit facts and the genuineness of documents (request

to admit) upon Decicco by first class mail on June 11, 2002. Decicco has not filed an answer to

the complaint, the request to admit, or either of the two motions for summary judgment as of the

date of this order. The People filed a request to admit on June 11, 2002. The People allege in

their motion for summary judgment that Decicco admitted the material allegations asserted in the

complaint because Decicco did not respond to the People’s request to admit facts and the

genuineness of documents. Mot. at 2. For filings made on or after January 1, 2001, facts are

deemed admitted and documents deemed genuine where a party fails to respond.

See

35 Ill.

Adm. Code 101.618(f).

Because Decicco failed to respond to the People’s request to admit, the Board therefore

deems admitted the matters of fact and the genuineness of the documents set forth in the People’s

request to admit. Specifically, the Board finds the following facts admitted:

1. Decicco was the owner and operator of a demolition or renovation activity

that began on or before March 1, 1997, at 4305 West 24th Place, Chicago

(site 1). Mot. at 2-3, Exh. A.

2. Decicco notified the Agency of the demolition or renovation of site 1 in a

notification of demolition and renovation form postmarked February 24,

1997. Mot. at 3, Exh. A.

3. Decicco was the owner and operator of a demolition or renovation activity

that began on or before March 17, 1997, at 2908 West Madison Street,

Chicago (site 2). Mot. at 3, Exh. E.

4. Decicco notified the Agency of the demolition or renovation of site 2 in a

notification of demolition and renovation form postmarked March 17,

1997. Mot. at 3, Exh. E.

5. Decicco was the owner and operator of a demolition or renovation activity

that began on or before March 17, 1997, at 2910 West Madison Street,

Chicago (site 3). Mot. at 4, Exh. C.

6. Decicco notified the Agency of the demolition or renovation of site 3 in a

notification of demolition and renovation form postmarked March 17,

1997. Mot. at 3, Exh. C.

7. Decicco was the owner and operator of a demolition or renovation activity

that began on March 17, 1997, at a site located at 5650 South Ashland

Avenue in Chicago (site 4). Mot. at 4, Exh. B.

8. Decicco notified the Agency of the demolition or renovation of site 4 in a

notification of demolition and renovation form postmarked March 13,

1997. Mot. at 5, Exh. B.

9. Decicco was the owner and operator of a demolition or renovation activity

at 3353-3355 West Chicago Avenue, Chicago (site 5). Exh. E.

10. Decicco was the owner and operator of a demolition or renovation activity

at 911-919 West 69th Street, Chicago (site 6). Exh. D.

The Board also finds that the genuineness of the documents attached to the People’s

motion, Exhibits A-F, is admitted. Now the Board discusses whether the People are entitled

judgment as a matter of law based on the admitted facts and genuineness of documents.

MOTION FOR SUMMARY JUDGMENT

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).

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. § 61.145(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.

* * *

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:

(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.

* * *

(ix) Scheduled starting and completion dates of demolition or

renovation.

* * *

Count I: Untimely Notifications

The People allege that Decicco violated Section 61.145(b) of the asbestos NESHAP, and

therefore violated Section 9.1(d)(1) of the Act (415 ILCS 5/9.1(d)(1)(2000)) by failing to submit

notifications to the Agency at least 10 days before demolition began. Mot. at 3.

The Board finds that Decicco is an owner or operator of a demolition or renovation

activity as defined by the asbestos NESHAP. Furthermore, the structures at issue in count I, sites

1, 3, and 4, are facilities as defined by the asbestos NESHAP.

See

40 C.F.R. § 61.141(2000).

The notification requirements of Section 61.145(b) apply to facility demolitions even where

there is no asbestos present.

See

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

notice “[a]t least 10 working days before demolition begins.” There is no issue of material fact

that Decicco did not submit the notice to the Agency on time before starting the demolitions at

the three sites in count I.

See

Ex. A at 9, 12, and 24.

The Board finds that Decicco violated Section 61.145(b) of the asbestos NESHAP. The

USEPA adopted the asbestos NESHAP regulations pursuant to Section 112 of the Clean Air Act.

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

part of the People’s motion for summary judgment.

Count II: Incomplete Notifications

The People allege that Decicco violated Section 61.145(b)(4) of the asbestos NESHAP,

and therefore, violated Section 9.1(d)(1) of the Act by submitting incomplete notification of

demolition forms to the Agency. Mot. at 8. The Board finds that the structures at issue in count

II, sites 1, 2, 4, 5, and 6, are facilities as defined by the asbestos NESHAP.

See

40 C.F.R. §

61.141(2000).

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

if it is original or revised. There is no genuine issue of material fact that notifications for sites 5

and 6 did not provide this information. The Board finds that Decicco violated Section

61.145(b)(4)(i), and therefore, Section 9.1(d)(1) of the Act.

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

indicate the type of operation – demolition or renovation. There is no genuine issue of material

fact that notifications for sites 5 and 6 did not indicate this information. The Board finds that

Decicco violated Section 61.145(b)(4)(iii), and therefore, 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. There is no genuine issue of material fact that the notifications

for sites 1, 2, 3, 4, 5, and 6 did not indicate these procedures. The Board finds that Decicco

violated Section 61.145(b)(4)(v), and therefore, 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. There is no genuine issue of

material fact that the notifications for sites 5 and 6 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), and therefore, 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.” 40 C.F.R.

§ 61.145(b)(4)(v)(2000). As alleged, the notifications for sites 5 and 6 did not indicate these

dates.

See

Exh. D and E. However, these notifications indicated that there was no asbestos to be

removed, making the starting and ending dates for asbestos removal inapplicable. Furthermore,

where the amount of RACM is small to nonexistent in a facility being demolished, Section

61.145(b)(4)(viii) of the notification requirements does not apply.

See

40 C.F.R.

61.145(a)(2)(ii)(2000). The Board finds that Decicco did not violate Section 61.145(b)(4)(viii).

The asbestos NESHAP notification requirements do not oblige the owner or operator to

state that asbestos is present. Section 61.145(b)(4)(vi) mandates only that an owner or operator

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

II nonfriable ACM that will not be removed. Decicco answered this question on the Agency’s

notification forms for sites 5 and 6. Since the Board finds 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 did not violate Section 61.145(b)(4)(vi) of the asbestos

NESHAP, and therefore, did not violate Section 9.1(d)(1) of the Act by failing to state if asbestos

is present.

CONCLUSION

The Board deems admitted the facts and genuineness of documents set forth in the

People’s request to admit. The Board grants the People’s motion for summary judgment on all

alleged violations except those involving: (1) failure to indicate the starting and ending dates of

asbestos removal work; and (2) failure to indicate whether asbestos was present. The Board

denies the People’s motion for summary judgment on the two latter alleged violations.

The Board therefore 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 directs the parties to hearing on the specific issue of remedy, including

penalty. Decicco may also be liable for costs, pursuant to 42(f) of the Act, including attorney,

expert witness, and consultant fees, incurred by the State in this action. The parties are only to

present evidence relevant under Sections 33(c), 42(f), and 42(h) of the Act (415 ILCS 5/33(c),

42(f), (h) (2000)).

ORDER

1. The Board grants the People’s motion for summary judgment in part, finding that

Decicco violated 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 denies the People’s motion for summary judgment in part, finding

Decicco did not violate Sections 61.145(b)(4)(viii) and 61.145(b)(4)(vi) of the

asbestos NESHAP. 40 C.F.R. §§ 61.145(b)(4)(viii) and (vi)(2000).

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

remedy, including penalty, and the People’s costs, and attorney fees. The parties

are only to present evidence that is relevant under 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 and justifications for any proposed penalty.

IT IS SO ORDERED.

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

adopted the above interim order on January 9, 2003, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board