ILLINOIS POLLUTION CONTROL

BOARD

January

4,

1996

PEOPLE OF THE STATE OF ILLINOIS,

)

Complainant,

v.

)

PCB 95—170

)

(Enforcement-Air)

ENVIRONMENTAL CONTROL AND

)

ABATEMENT,

INC.,

Respondent.

ORDER OF THE BOARD

(by J.

Yi):

On June 15, 1995 the People of the State of Illinois

(State), through the Office of Attorney General, filed a three

count complaint,

alleging certain violations concerning asbestos

removal reporting requirements, pursuant to Sections 42(d) and

(e) of the Environmental Protection Act (Act).’

(415 ILCS 5/31,

42(d) and

(e)

(1994).)

This matter is before the ~oard today

pursuant to a motion to dismiss filed by respondent,

Environmental Control and Abatement,

Inc.,

(ECA)

on October 17,

1995.

For the reasons set forth below the Board denies ECA’s

motion to dismiss.

PROCEDURAL HISTORY

As stated previously the State filed a complaint against ECA

alleging certain violations on June 15,

1995.

On October 17,

1995, ECA filed a motion to dismiss the complaint and entered an

appearance requesting to appear Pro Hoc Vice.

The State filed a

motion to file instanter its response to the motion to dismiss,

the response and an amended complaint on November 11,

1995.2

On

November 28,

1995, ECA filed a motion requesting leave of the

Board to file a reply to the State’s response and the reply.

On

December 27,

199b the state tiled a response to ECA’S motion tor

leave to file a reply.

The Board grants ECA’s motion to appear

‘Although the State does not explicitly state in its

complaint or its amended complaint filed on November 11,

1995

that this action is brought pursuant to its authority given to it

by Section 31 of the Act, the Board will assume that the State is

also bringing this action under such authority.

(415 ILCS 5/31

(1994).)

2The Board in its November 2,

1995 order granted the State’s

October 27,

1995 motion for extension of time to file its

response by November 3,

1995.

---

2

Pro Hoc Vice, the State’s motion to file instanter its response,

ECA’s motion for leave to file a reply and the State’s response

to

ECA’s

motion for leave to reply.

FACTS

ECA, a Missouri Corporation also registered in Illinois,

performs removal services of asbestos containing material

(ACM)

prior to demolition or renovation activities.

The State alleges

that ECA was or is an operator as defined by the National

Emission Standards for Hazardous Pollutants

(NESHAP).

On five

different occasions during May 1991 through October 1993, ECA

notified the Illinois Environmental Protection Agency

(Agency)

of

its intent to engage in ACM removal activities.

ECA performed

certain activities at the following sites: Alton Mental Health

Center (Alton), Gardner-Denver Main Plant in Quincy, Illinois

(Quincy), Environmental Services Building in Urbana, Illinois

(Urbana), Boiler House at the W.G. Murray Correctional Center in

Centralia, Illinois (Centralia) and at the Highland Junior High

School (Highland).

(Generally Comp.

at 1-3.)

The State alleges in Count

I of the complaint that ECA,

as

operator, was required pursuant to 40 C.F.R. 61.145(b)

(1991)

to

file notice of the activities prior to the start of those

activities and that ECA failed to timely file the notifications

for its activities

at the Quincy, Centralia and Highland sites in

violation of Section 9.1(d)

of the Act.(415 ILCS 5/9.1(d)

(1994),

112(c)(1)(B)

of the Clean Air Act

(42 U.S.C.

7412(c) (1) (B))

and

40 C.F.R.

61.145(b)

(1991)

.~

Furthermore,

in Count II of the

complaint the State alleges that ECA,

as operator, was required

to provide certain information to the Agency related to the

activities at all five sites and failed to do so in violation of

Section 9.1(d) of the Act,

112(c) (1) (B)

of the Clean Air Act and

40 C.F.R.

61.145(b)(4)(i)

(1991).

Finally in Count III of the

complaint the State alleges that ECA,

as operator, failed to

properly revise its notification to the Agency of its activities

at the Centralia site in violation of Section 9.1(d)

of the Act,

3The State’s complaint will be referenced as “Comp. at”,

ECA’s motion to dismiss will be referred to as “Mot.

at”,

the

State’s response will be referenced as “Resp.

at”, ECA’s reply

will be referenced as “Reply at

“,

the State’s amended complaint

will be referenced as “Amend.

Comp.

at

“

and the State’s

response to the reply will be referenced as “Resp. to reply

at

4section 9.1(d) (1) of the Act requires persons in the State

of Illinois to meet the requirements of Section 112 of the Clean

Air Act and any federal regulations adopted pursuant that

section.

---

3

112(c) (1) (B)

of the Clean Air Act and 40 C.F.R. 61.145(b) (3)

(1991).

(Generally Comp at 3—14.)

MOTION TO DISMISS

ECA raises several arguments in its motion to dismiss as

reasons for the Board to grant its motion.

However, not all of

the arguments are appropriate for a motion to dismiss and are

more appropriate for a motion for summary judgement.

Nonetheless, we will consider all of the arguments.

ECA argues

that

it

is not an operator for project notification purposes as

alleged by the State; the requirements of

NESHAP

do not apply to

floor tile removal; that ECA is not responsible to survey for ACM

not to be removed at the sites; that

NESHAP

requirements do not

apply to projects that contain less than 260 linear feet of ACM;

that the State should be equitably stopped from pursuing its

claims and that the State’s complaint is barred by the doctrine

of laches.

(Mot.

at 5—11.)

The “Argument” section of this order

will be divided into subsections relating to each of ECA’s

reasons the complaint should be dismissed, with its arguments

concerning the doctrine of laches and equitable estoppel

combined.

APPLICABLE

LAW

40 C.F.R. §61.02

(1991) Definitions

*

*

*

Owner or operator

means any person who owns,

leases, operates,

controls, or supervises a stationary source.

*

*

*

Stationary source

means any building,

structure,

facility, or

installation which emits or may emit any air pollutant which has

been designated as hazardous by the Administrator.

40 C.F.R. §61.141

(1991) Definitions

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.

*

*

*

Demolition

means the wrecking or taking out of any load-

---

4

supporting structural member of a facility together with any

related handling operations or the intentional burning of any

facility.

*

*

*

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.

*

*

*

Renovation

means altering a facility or one or more facility in

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.

40 C.P.R. §61.145

(1991) Standard of 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 non friable 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:

*

*

*

(b)

Notification requirements.

Each owner or operator of a

demolition or renovation activity to which this section applies

shall:

*

*

*

ARGUMENTS

ECA asserts it is not an olDerator for Irolect notification

purposes.

ECA states the NESHAP regulations apply to “any person who

owns,

leases, operates, controls, or supervises a stationary

source” citing to 40 C.F.R S61.02.

ECA states that pursuant to

---

5

42 U.S.C §7411 (a)(3),

a stationary source is any building,

structure, facility or installation which emits any air

pollutant.

ECA concludes that the State’s complaint is

“incorrectly premised” that ECA,

as an ACM removal contractor,

is

an

‘...

‘operator’ because he controls or supervises the

stationary source...”.

(Not. at 5.)

ECA argues that the premise

is incorrect because it did not control or supervise the site

when notification was required.

ECA asserts that the NESHAP

notification requirement does not apply toACM contractors

because project notification

is required 10 days prior to on—site

work and that the Agency project notification form

“.

.

.asks for

identification of the notifying party as an

‘owner,

removal

contractor or other operator”.

(Mot.

at 6.)

Accordingly, ECA

states it cannot be an operator pursuant to NESHAP at the time of

the filing of project notification and as a result ECA was not

“...subject to the notification requirements under the

regulations and statutes”.

(Not.

at

6.)

In reply to the State’s response, ECA asserts that 40 C.F.R.

61.141 “...definition of owner or operator does not specifically

mention the asbestos abatement or demolition contractor as an

owner or operator” and “~t)herefore, to determine who is an owner

or operator requires reference back to the general definitions of

40 C.F.R. 61.02.”

(Reply at 1.)

In addition ECA argues that

certain sections of subpart N,

specifically 40 C.F.R.

61.145(b) (4)

(ii),

separate owner or operator from the asbestos

removal contractor and that

if the asbestos removal contractors

were to be defined as owner or operator 40 C.F.R Part 61 would

have clearly done so.

(Reply at

1.)

In response the State argues that ECA improperly relies on

the general provisions of NESHAP but should utilize the

“.

.more

specific definitional section of subpart N of NESHAP...” which

clearly defines ECA as an owner or operator.

(Resp. at 10.)

The

State argues, pursuant to 40 CF.R

61.141, that ECA is “...an

operator of renovation activities and, therefore,

is subject to

the notification requirements...”.

(Resp.

at 12.)

In its response to the reply, the State argues that “...the

fact that ‘asbestos abatement contractor’ nor ‘demolition

contractor’ do not appear in 40 C.F.R.

§61.141 is not dispositive

as to the Issue

of EC&A’s

‘owner or operator’

status.”

(Resp. to

Reply at 2.)

The State asserts that the plain language and

intent of 40 C.F.R. §61.141 and the activities conducted at each

site by ECA d nonstrates that ECA was an

~

or

operator’

within the meaning of NESHAP regulations.”

(Resp. to Reply at 2-

5.)

Additionally, the State argues that ECA cannot contract out

from its liabilities and obligations under NESHAP with an owner

or operator of a facility.

(Resp. to Reply at 5-7.)

Furthermore, the State asserts that “...tbe People have elected

to proceed against EC&A as opposed to the owners or operators of

the facilities in question, and EC&A should not be allowed to

---

6

exempt itself from the NESHAP regulations or restrict the

Attorney General’s prosecutorial discretion based upon its

falsely premised contract claim” and that “EC&A is the owner or

operator of the renovation projects at issue, and as such,

independent of its contractual arrangements, EC&A has an absolute

obligation to comply with the NESHAP regulations, and failed to

do so.”

(Resp. to Reply at 7.)

ECA argues that NESHAP does not apply to floor tile removal at

the Highland site.

ECA argues that the Highland site activity does not fall

under the NESHAP regulations because it involved the removal of

floor tile which has been deemed non-friable material and is

eMempted from the NESHAP regulations.

(Mot.

at

7.)

ECA states

that the preamble to the 1990 amendments to the Federal NESHAP

notes state that Category I non-friable ACM is not subject to the

NESHAP.

(Not.

at 7.)

ECA explains that

“.

.

.as a courtesy to

IEPA, a project notification was provided by ECA on behalf of the

project owner” for the Highland site.

In addition, ECA states

that it provided the plan for glovebag method removal as part of

that notification as a precaution if the nonchemical means of

removal failed, and not because the floor tile became friable ACM

which would then be regulated by NESHAP.

(Not,

at

7.)

Thus ECA

concludes that the Highland site project was not regulated by

NESHAP because the floor tile remained non—friable and in order

for NESHAP to apply the State must allege and prove that the

floor tile, because of the removal method, became friable.

(Not.

at 7.)

The State disagrees with ECA’s assertion that the floor tile

did not become friable during the removal process and thus not

regulated by NESHAP.

(Resp.

at 13.)

Additionally, the State

argues that the notification form utilized by ECA does not

request for contingency plans but for the actual work plans for

the site.

The State asserts that ECA provided those

descriptions, the glovebag method, because ECA felt that the

removal of floor tile and mastic material would become friable

and therefore regulated by NESHAP.

(Resp. at 14)

Furthermore,

the State explains that there is no issue of “work practices”,

but about proper notification and,

therefore,

it does not need to

demonstrate whether the material became rriable but rather

whether there was proper notification.

(Resp. at 15-17.)

ECA asserts it is not responsible to survey for ACM not to be

removed at the Highland,

Urbana. Quincy and Alton sites.

ECA states that it is an independent contractor who does not

possess the information required to conduct the survey at the

site and that the owner or operator of the building is in the

better position to provide such information.

(Not. at

8.)

ECA

argues that to require the ACM removal contractor to survey the

---

7

building “...would be a severe and undue burden and cost

prohibitive expense to a removal contractor”.

(Mot. at 8.)

ECA

asserts that it was only conducting the scope of its activities

pursuant to its contract and supervised access concerned only

those areas.

(Mat.

at 8.)

ECA ôoncludes that since it does not

have control of the site prior to the removal of the asbestos it

should not be responsible for conducting the survey.

(Not.

at

8.)

In response, the State asserts that 40 C.F.R. §61.145(a)

requires owners and operators to thoroughly inspect the affected

facility or part of the facility where the demolition or

renovation operation will occur and that ECA can not “...avoid

its obligations under NESHAP by exempting itself through

contractual agreements with the owner of the facility.”

(Resp.

at 18.)

In addition, the State argues that other sections of

NESHAP,

i.e.

40 C.F.R.

§61.145(b) (4) (iv),

discuss the duty to

conduct inspections.

(Resp. at 17-18.)

Furthermore, the State

asserts that it is neither attempting to create new burdens for

ECA nor requiring ECA to inspect the whole facility, but rather

it is enforcing the NESHAP regulations.

(Resp.

at 18-19,

Resp.

to Reply at

19.)

ECA asserts that NESHAP does not apply to prolects of less than

260 lineal feet of ACM.

(Centralia site)

ECA states that it conducted two separate and distinct

removal projects which individually are less than 260 linear feet

(l.f.) and thus NESHAP does not apply to the projects at the

Centralia site.

(Not. at 8.)

ECA argues that the two

“.

.

.separate and distinct abatement operations were conducted

nearly three months apart and,

in fact, the total amount of ACM

removed in March was well below the 260 l.f. threshold and the

total removed in June pursuant to the May courtesy notice was

also well below the 260 l.f. threshold.”

(Mot.

at 8.)

ECA

asserts that the State is mistaken to combine the projects

pursuant to 40 C.F.R S61.145(a) (4)

(iii)

because the projects took

place 3 months apart and were in response to separate actions.

(Mot. at 8-9.)

Finally, ECA states that

“.

.

.

if the Agency’s

allegations are assumed arguendo to be true, which ECA denies,

then the State’s allegation exhibit a sincere attempt by E~Ato

cooperate with the Agency” and that nothing alleged demonstrates

any danger occurred to the environment or persons.

(Mot. at

9.)

The

State argues in response that ECA’s statements are an

oversimplification of 40 C.F.R.

S61.145(a)(4)(iii).

(Resp. at

20.)

The State asserts that the original March 11,

1992

notification for the Centralia site was clearly deficient on

several grounds, but in particular,

it failed to properly measure

the amount of material being removed.

(Resp. at 21.)

The State

also asserts that ECA recognized the deficiency and stated that

it will be submitting revised notification.

(Resp.

at 21.)

The

---

0

State asserts that the revised notifications dated May 15 and May

28 signed by the president of ECA state

“.

.

.that

285

square feet

of material would be removed...” and that this amount would

trigger the requirements of

NESHAP.

(Resp. at 22.)

The State

argues that the revised notifications, while one being designated

as an original notification, should be treated as a continuation

of the original March 11,

1995 project or as one project because

the revised notifications state the removal is taking place in

the same boiler house as referenced in the March 11, 1992

notification.

(~esp.at 22.)

As a result, the State asserts

that the notification requirements of

NESHAP

are applicable to

the Centralia site because it involved the removal of an amount

ACM totaling more than 260 1. f.

(Resp.

at

22.)

E~Aar~uesthat the equitable doctrine of laches and equitable

estoppel should be applied.

ECA asserts that the State’s complaint should be equitably

estopped or barred by the operation of the equitable doctrine of

laches.

(Not.

at 9—11.)

EcA states that the projects at issue

occurred between May of 1991 and October of 1993 and that

“.

.

.latest communication of any kind from IEPA was a November 24,

1993 Compliance Inquiry Letter (“CIL”)

for the Alton project.”

(Mot.

at 9.)

ECA further states that it had no knowledge or

reason to suspect that any enforcement action was being pursued

until the March 1995 meeting with the Illinois Attorney General.

(Mot.

at 9.)

ECA asserts that “~tjhe delays in enforcement

against ECA are unconscionable because they induced ECA to

believe that no enforcement would be pursued on these projects.”

(Not. at 9.)

As such, ECA argues that the delay has materially

prejudiced its ability to defend itself and therefore the State

should be equitably estopped from bringing its complaint.

(Mot.

at 10.)

In addition to the equitable estoppel argument, ECA argues

that the State’s complaint should be barred by the operation of

the equitable doctrine of laches.

(Not.

at 10.)

ECA cites to

Hauser

V.

Chicago Park District,

263 Ill.App.3d 39,

640 N.E.2d

294, 295 (I1l.App.

1994), Summers v. Villag.e of Durand,

267

Ill.App.3d 767, 643 N.E.2d 272, 275

(Ill. App.

1994), and Lee v.

City of Decatur, 256 Ill.App.3d

192,

627 N.E.2d 1256,

1258

(Ill.App.

1994)

for the proposition that the State’s filing the

complaint roughly three years after the alleged violations

occurred should be barred.

(Not.

at

10.)

ECA argues that the

State was aware of the pertinent facts within 30 days of the CILs

and have not provided any reasonable explanation for the delay in

filing the instant complaint.

(Not.

at 10.)

ECA concludes that

State’s complaint should be barred by the operation of the

equitable doctrine of laches.

(Not.

at 10.)

Additionally as to the Urbana site, ECA states that Mr. Otto

Klien represented to ECA that

“.

.

.

individual project notification

---

9

was unnecessary because its individual project would be covered

by the annual notification filed by the University of Illinois

and updated quarterly.”

(Not.

at 4.)

ECA further states that

“(njo correspondence was sent to ECA to retract Mr. Klien’s

interpretation...”, and “~n)or was there any further action taken

by IEPA with respect to this matter until March of this year,

1995”.

(Mot.

at 4.)

In response the State argues that the complaint should not

be barred by the doctrine of equitable estoppel or the doctrine

of laches because ECA was on continuing notice that the sites at

issue were under the potential risk of enforcement due to the

ongoing communication.

(Resp. at 22-23.)

In addition, the

State maintains that ECA induced the Agency to hold its

enforcement case in abeyance to give ECA an opportunity to

administratively comply with the NESHAP requirements.

(Resp. at

23-24.)

In addition, ECA was afforded an opportunity to respond

to each CIL issued to the facility during the time period, either

in writing or by meeting with the Agency.

(Resp. at 23-25.)

Furthermore, the State asserts that it never indicated that the

violations at issue with respect to the five sites were resolved

or that no enforcement action would be taken.

(Reep. at 23.)

The State argues that it should not be penalized for acting in

good faith and trusting the respondent to correct its problems

administratively.

(Resp. at 24.)

The State also argues that ECA is incorrect in stating that

there was no further communication.

(Resp. at 24.)

The State

maintains that “...an Enforcement Notice Letter

(tiENL~~)was sent

to the respondent on January 31,

1995...”,

“~s)econd,

as

explained above, five CIL’s issued between May 1991 and October

1993 clearly give ECA continuing notice that

a history of

noncompliance was developing and these matters could be

potentially subject to enforcement”, and finally “...ECA’s CIL

response letters indicated that ECA was intending to take certain

corrective actions to achieve compliance...” and that

“.

.

.such

assurance made by ECA caused the State to hold its potential

enforcement case in abeyance.”

(Resp.

at 24-25.)

The State

concludes that it was not reasonable for ECA to assume that the

compliance issues related to the five sites were resolved and

that State should not be barred in pursuing its complaint.

(Resp.

at 26.)

In response to ECA’s statements concerning the Urbana site

and Mr.. Xlien, the State asserts that the claim is erroneous on

several grounds.

(Resp.

at 26.)

The State argues that ECA could

not rely on the statements of Mr. Klien because they were made

after the ECA was required to make the notifications.

(Resp. at

26.)

The State further states that ECA is mistaken as to what

Mr. Klien’s statements meant and that Mr. Klien never “...statecl

that the Urbana notification nor any of the other notifications

at issue in the State’s complaint would not be referred to

---

10

enforcement.”

(Resp.

at 26.)

Finally the State argues that Mr.

Klien did not advise ECA to destroy its records and even if he

did ECA is required to

“.

.

.maintain records and submit quarterly

reports, and to date,

no quarterly updates have been submitted to

the IEPA regarding the Urbana notification”.

(Resp. at 27.)

DISCUSSION

The Board will discuss the arguments concerning equitable

estoppel and the equitable doctrine of laches prior to the

discussion of the other arguments made by ECA.

The Board has

held that the equitable doctrine of laches generally does not

apply to enforcement actions brought before the Board under the

Act.

(See City of Des Plaines

Gail P~pasteriadis,a.nd Gabriel

and Linda Gulo v. Solid Waste Agency of Northern Cook County,

(May 20,

1993), PCB 92—127.)

In assessing the period in which

claims will be barred by laches, equity follows the law, and

generally courts of equity will adopt the period of limitations

established by statute.

Beynon Buildinci Corp.

v. National

Guardian Life Insurance Co.,

(2d Dist.

1983),

118 Ill. App.

3d

754,

455 N.E.2d 246,253.

Thus, when the right to bring a lawsuit

is not barred by the statute of limitations, unless conduct or

special circumstances make it inequitable to grant relief, the

equitable doctrine of laches does not operate to bar a lawsuit

either.

(Id.)

The State’s claim was brought pursuant to

Sections 31, 42(d) and

(e)

of the Act, none of which contain an

express statutory limitation period, and the Act does not provide

for a specific statutory limitation period within which a

complaint must be filed.

In addition, the record does not

demonstrate that the delay in the filing of the complaint has

caused prejudice.

Six elements must be shown in order for the doctrine of

equitable estoppel to apply~ (1) Words or conduct by the party

against whom the estoppel is alleged constituting either a

misrepresentation or concealment of material facts;

(2) knowledge

on the part of the party against whom the estoppel is alleged

that representations made were untrue;

(3) the party claiming the

benefit of an estoppel must not have known the representations to

be false either at the time they were made or at the time they

were acted upon;

(4) the party estopped must either intend or

expect that his conduct or representations will be acted upon by

the party asserting the estoppel;

(5) the party seeking the

estoppel must have relied or acted upon the representations; and

(6)the party claiming the benefit of the estoppel must be in a

position of prejudice if the party against whom the estoppel is

alleged is permitted to deny the truth of the representations

made.

(City of Mendota v. Pollution Control Board,

(October 1,

1987)

112 Ill.

Dec.

752,

756.)

The Board has rarely applied the doctrine of estoppel.

---

11

(See, City of Herrin. v...Illinois Environmental Protection Agency,

(March 17,

1994) PCB 93—195 at 8.)

In those cases where we have

applied it, we found that there that the Agency affirmatively

misled a party and then sought enforcement against that party for

acting on the Agency’s recommendation.

(See In the Matter of:

Pielet Brothers’ Tradinci.

Inc.,

(July 13,

1989)

AC 88-51, 101 PCB

131, and IEPA v. Jack Wright,

(August 30,

1990)

AC 89-227.)

In

this case we do not find that the Agency or the State

affirmatively misled ECA.

ECA was fully aware of the fact that

the Agency intended to pursue an enforcement action as evidenced

by the responses to the CILs and the assurances of compliance.

In addition, ECA has not demonstrated that the inaction or delay

in filing the complaint resulted in a misrepresentation or

concealment of material facts.

Therefore the Board will not

apply the doctrine of estoppel in this case.

EC~assertsit is not an operator for project notification

purposes.

We find that ECA is an “operator” as defined by the more

specific definitions contained in 40 C.F.R. S6l.141.

As that

section states:

“(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.”

However,

40 C.F.R. §61.141 does

define “owner or operator”,

“renovation” and “demolition”.

Therefore, the definition of owner or operator contained 40

C.F.R.

61.02 does not control.

The definition for 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.”

(Emphasis added.)

(40 C.F.R.

§61.141)

The definition of 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.”

(Emphasis added.)

(40 C.F.R. S61~.141.)

Therefore reading the

definition of owner or operator along with the definition of

renovation, an asbestos removal contractor such as ECA may also

be an owner or operator of a demolition or renovation activity.

There is nothing which indicates that the definition of owner or

operator of a demolition or renovation activity as defined 40

C.F.R. ~61.141 is different for the purposes of the notification

in 40 C.F.R. §61.145(b).

Having found ECA an owner or operator under the definition

of subpart N, which includes the requirements of 40 C.F.R.

S61.145(a), ECA is responsible to thoroughly inspect the affected

facility or part of that facility where the demolition or

renovation operation will occur for the presence of asbestos,

including Category I and Category II non-friable ACM is

applicable.

As the State explains, ECA is not required to

inspect the whole facility only that portion where the activity

---

12

is to take place.

Concerning the remaining two arguments presented by ECA,

that the

NESHAP

requirements do not apply to floor tile removal

at the Highland site, and that

NESHAP

does not apply to projects

at the Centralia site because the removal of ACM was less than

260 lineal feet,

the Board denies the motion to dismiss at this

time because these arguments involve issues of fact which need to

be developed at hearing.

We anticipate that these issues, among

others, will be discussed at hearing or in post-hearing briefs.

Thus, the Board denies ECA’s motion to dismiss.

CONCLUSION

The Board finds that ECA is an owner or operator of a

demolition or renovation activity pursuant to the

NESHAP

regulations and is thereby obligated to meet the NESHAP

notification requirements.

The Board is not making a finding as

to whether ECA did or did not fulfill its obligations under those

requirements.

As for the other issues raised in the motion to

dismiss,

for the reasons stated above, the Board denies ECA’s

motion to dismiss and directs the parties to proceed to hearing.

IT IS SO ORDERED.

Board member Emmett

E. Dunham concurred.

I, Dorothy N.

Gunn,

Clerk of the Illinois Pollution Control

Bo.rd, hereby

cert~y

that

the above order was adopted on the

day of _______________________,

1996,

by a vot

of

7

~O

Dorothy N

unn, Clerk

Illinois P llution Control Board