ILLINOIS POLLUTION CONTROL BOARD
February 17, 2000
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ENVIRONMENTAL CONTROL AND
ABATEMENT, INC.,
Respondent.
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PCB 95-170
(Enforcement - Air)
ORDER OF THE BOARD (by M. McFawn):
Complainant the People of the State of Illinois (People) and respondent Environmental
Control and Abatement, Inc. (ECA) each filed motions for summary judgment on
September 28, 1999. The People’s motion was accompanied by a “Memorandum in Support of
Motion for Summary Judgment.” On October 13, 1999, ECA filed “ECA’s Response to
Motion for Summary Judgment Filed by the Office of the Attorney General” (ECA Response).
On October 27, 1999, the People filed “Complainant’s Combined Response to Respondent’s
Motion for Summary Judgment and Respondent’s Response to People’s Motion for Summary
Judgment” (People’s Response). After considering the record and the arguments of the parties,
each motion is granted in part and denied in part. Because material issues of fact exist which
are not resolved by the Board’s rulings on these motions, this case will proceed to hearing.
NATURE OF THE CASE
The People’s amended complaint, filed on November 8, 1995, consists of three counts
alleging violations of federal regulations governing asbestos removal, Section 112 of the federal
Clean Air Act, 42 U.S.C. 7412, and the Illinois Environmental Protection Act (Act), 415 ILCS
5 (1998). The alleged violations of federal provisions are within the Board’s jurisdiction
because Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (1998), prohibits violation of Section 112
of the Clean Air Act, 42 U.S.C. 7412, or any regulation adopted pursuant to it.
This case involves five asbestos removal sites, in Alton, Centralia, Highland, Quincy
and Urbana. In count I the State alleges that ECA violated 40 C.F.R. 61.145(b)(3), Section
112(c)(1)(B) of the Clean Air Act, and Section 9.1(d) of the Act, by failing to give timely notice
of the asbestos removal activities in Centralia, Highland, and Quincy. In count II the State
alleges that the notices ECA provided for all of the projects were incomplete, in violation of 40
C.F.R. 61.145(b)(4), Section 112(c)(1)(B) of the Clean Air Act, and Section 9.1(d) of the Act.
In count III, the State alleges that ECA again violated 40 C.F.R. 61.145(b)(3), Section
112(c)(1)(B) of the Clean Air Act, and Section 9.1(d) of the Act, by failing to give timely notice
of a change in the start date for the Centralia project.
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REGULATIONS AT ISSUE
The provisions of 40 C.F.R. 61.145 involved in this case, as well as relevant definitions
from 40 C.F.R. 61.141, are set out in an appendix to this order.
STANDARDS FOR SUMMARY JUDGMENT
The Illinois Supreme Court set forth the standards for consideration of motions for
summary judgment in Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 249, 633
N.E.2d 627, 630 (1994):
A motion for summary judgment is to be granted if “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law.” [735 ILCS 5/2-1005(c).] The pleadings, depositions,
admissions, and affidavits on file must be construed against the movant and in
favor of the opponent of the motion, although the opponent cannot rely simply
on his complaint or answer to raise an issue of fact when the movant has
supplied facts which, if not contradicted, entitle him to judgment as a matter of
law. Summary judgment is a drastic means of disposing of litigation, so the right
of the moving party to obtain summary judgment must be clear and free of
doubt. Where doubt exists as to the right to summary judgment, the wiser
judicial policy is to permit resolution of the dispute by a trial.
The appellate court explained the burden of each party in prosecuting or defending against a
motion for summary judgment in Estate of Sewart, 236 Ill. App. 3d 1, 8, 602 N.E.2d 1277,
1281-82 (1st Dist. 1992) (citations omitted):
The party seeking summary judgment may meet its initial burden of persuasion
by presenting facts which, if uncontradicted, would entitle it to judgment as a
matter of law. Once the party seeking the summary judgment produces such
evidence, the burden of production shifts to the party opposing the motion, who
may not rely solely on allegations in the complaint, but is required to come forth
with some facts which create a material issue of fact. Although a [party]
opposing a motion for summary judgment need not prove her case at this point,
she must provide some factual basis which would arguably entitle her to
judgment under the applicable law. If the respondent fails to produce such
evidence, summary judgment is properly granted.
STATUS OF ECA’S DISCOVERY RESPONSES
We note initially that there is a dispute regarding what the “admissions on file” consist
of in this case. On January 8, 1997, ECA filed a “Response to Complainant’s Request for the
Admission of Facts.” ECA contends that these responses cannot be considered by the Board in
evaluating these motions because they were stricken from the record by the hearing officer in
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an order filed on February 5, 1999. ECA Response at 3. The hearing officer’s order
specifically provided:
The parties also discussed an outstanding motion by the complainant to strike
answers to interrogatories filed by the respondent prior to obtaining counsel.
The respondent’s counsel agreed that the discovery responses should be stricken.
The complainant’s motion to strike is therefore granted.
The People respond that the motion to which the hearing officer referred was a motion to strike
ECA’s discovery requests, not responses, and consequently granting of the motion did not
result in striking of ECA’s interrogatory answers.
The record in this case contains no motion by the People to strike any discovery
responses by ECA, but it does contain “Complainant’s Objection to Respondent’s Request for
Discovery,” filed by the People on January 29, 1997. Since there was no motion to strike
ECA’s discovery responses pending, the hearing officer could not have granted such a motion.
We conclude, therefore, that ECA’s discovery responses remain a part of the record, and the
Board will consider these discovery responses in its evaluation of the pending summary
judgment motions. These responses are cited as “Adm. X,” where X is the paragraph number
of the specific admission cited.
EVIDENCE
In addition to the discovery responses discussed above, the People and ECA have
submitted affidavits of Dale Halford and Betsy Kirchoff respectively, laying the requisite
foundation for consideration by the Board of the documents appended to their respective
motions. Additionally, ECA has submitted an affidavit of William A. Lemire, president of
ECA. The Board’s findings of fact which follow are based on these sources.
CLEAN AIR ACT VIOLATIONS
As a threshold matter, we address the People’s allegations in each count of the complaint
that ECA violated Section 112(c)(1)(B) of the federal Clean Air Act, 42 U.S.C. 7412(c)(1)(B).
There is currently no “Section 112(c)(1)(B)” of the Clean Air Act, nor has there been since
November 15, 1990. Prior to that date, Section 112(c)(1)(B) of the Clean Air Act contained a
prohibition on exceeding emissions limits, but amendments effective on that date substantially
revised Section 112, and in the current version of that statute does not contain this prohibition.
Section 9.1(d) of the Act, which brings Clean Air Act violations within the Board’s
jurisdiction, prohibits violation of Section 112 “as now or hereafter amended.” 415 ILCS
5/9.1(d) (1998). Thus, for our purposes, the amended version of Section 112 was operative
when this case was filed. The initial notices for all the projects involved in this case were given
after the amendments were effective; none of the projects could have been covered by the old
statute. Consequently, the Board concludes that there can have been no violation by ECA of
this section, at any of the sites or under any of the three counts of the complaint. The Board
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accordingly grants ECA’s motion for summary judgment with respect to the alleged violations
of Section 112(c)(1)(B).
ANALYSIS OF OTHER ALLEGED VIOLATIONS
This case involves five asbestos removal sites, in Alton, Centralia, Highland, Quincy
and Urbana. Facts concerning each site are set forth separately in the discussion of each site.
The Alton Project
Alleged Violations
The amended complaint alleges that the notice submitted for the Alton project was
incomplete (count II).
Facts
ECA was hired to remove 25 linear feet of regulated asbestos containing material
(RACM) piping insulation and 800 square feet of RACM on surface areas from the Alton
Mental Health Center. Adm. 5; Comp. Mot. Exh. A; Resp. Mot. Exh.Q. ECA provided the
Illinois Environmental Protection Agency (Agency) with notification of the removal project by
U.S. Mail, postmarked October 6, 1993. Comp. Mot. Exh. A; Resp. Mot. Exh. Q. The
scheduled start date of the project was October 25, 1993.
Id.
ECA’s notification did not indicate the type of notification being submitted. It did not
indicate the approximate amount of non-friable ACM not to be removed from the site. It did
not include a description of the renovation work and methods to be used, nor did it describe the
work practices and engineering controls that would be used to prevent emissions of asbestos.
Finally, the notification did not describe the procedures to be followed in the event that
unexpected ACM was found or previously non-friable ACM became friable. Comp. Mot. Exh.
A; Resp. Mot. Exh. Q.
The Agency sent ECA a compliance inquiry letter (CIL) on November 24, 1993.
Comp. Mot. Exh. B; Resp. Mot. Exh. R. ECA sent a response to the Agency on January 7,
1994, including a completed notification form. Comp. Mot. Exh. C; Resp. Mot. Exh. S.
Analysis
It is undisputed that the notice originally submitted by ECA (1) did not indicate whether
an original or revised notification was being submitted, (2) did not indicate the approximate
amount of non-friable ACM not to be removed from the site, (3) did not include a description
of the renovation work and methods to be used, (4) did not describe the work practices and
engineering controls that would be used to prevent emissions of asbestos, and (5) did not
describe the procedures to be followed in the event that unexpected ACM was found or
previously non-friable ACM became friable. The Board concludes that the second omission
does not constitute a violation of the notification regulations. The specific provision in question,
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contained in 40 C.F.R. 61.145(b)(4)(vi), by its terms applies only to demolitions. The notice
indicates that the Alton project was to be a renovation. Consequently, the cited part of Section
61.145(b)(4)(vi) was inapplicable to ECA. The other omitted information, however, was
required in the notification filed by ECA. By failing to include this information, ECA violated
40 C.F.R. 61.145(b)(4)(i), (x), (xi), and (xvi). Consequently, ECA violated Section 9.1(d) of
the Act.
ECA’s only argument with respect to this project is that as soon as the shortcomings in
the notice were brought it its attention, it filed a revised notice with the missing information
included. ECA Motion at 14. ECA’s diligence in curing the defects may impact our
determination of an appropriate remedy, but does not change the fact that the initial notice was
deficient.
Conclusion
The Board grants the People’s motion to the following extent: The Board finds that
ECA violated 40 C.F.R. 61.145(b)(4)(i), (x), (xi), and (xvi), and consequently Section 9.1(d) of
the Act, with respect to the Alton project. The Board reserves ruling on the issue of an
appropriate remedy. The Board grants ECA’s motion for summary judgment to the following
extent: The Board finds that ECA did not violate 40 C.F.R. 61.145(b)(4)(vi) with respect to
the Alton project.
The Centralia Project(s)
1
Alleged Violations
The amended complaint alleges that the notice submitted for the Centralia project was
both untimely (count I) and incomplete (count II), and that a revised notice was untimely (count
III).
Facts
ECA was hired to remove RACM mag block straight pipe and cementious fitting
insulation from the boiler house at W. G. Murray Correctional Center in Centralia. Adm. 24;
Comp. Mot. Exh. M. ECA sent notice of the removal project by letter dated March 11, 1992,
indicating that the project was to begin on March 16 and conclude on March 20, 1992. Comp.
Mot. Exh. M. ECA did not use the form provided in 41 C.F.R. Part 61.
Id
. The project
consisted of removal of approximately 30 linear feet of pipe insulation. Lemire affidavit, ¶ 7.
The notice provided by ECA did not indicate the type of notification being submitted or
the type of operation performed. It did not describe the facility or affected part of the facility.
1
The parties dispute whether the work performed by ECA at the Centralia site constitutes one
or two projects.
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It did not indicate the procedure to be used to detect the presence of RACM and nonfriable
ACM. It did not include estimates of the approximate amount of RACM to be removed and the
approximate amount of nonfriable ACM not to be removed. It included neither a description of
the work to be performed and methods to be used, nor a certification that at least one trained
person would supervise stripping and removal. It did not indicate the date and hour that the
emergency occurred requiring asbestos abatement, nor did it provide an explanation of how the
event caused an unsafe condition or would cause equipment damage or an unreasonable
financial burden. It did not describe the procedures to be followed in the event that nonfriable
ACM became friable. It did not identify the waste transporter. Finally, it did not describe the
work practices to be used to prevent emissions of asbestos at the site. Comp. Mot. Exh. M.
The Agency sent ECA a CIL on March 20, 1992, citing violations of Section 9.1(d) of
the Act and 40 C.F.R. 61.145. Adm. 45; Comp. Mot. Exh. N. ECA responded to the CIL
by letter on March 31, 1992. Comp. Mot. Exh. O. ECA blamed the lapse on a consultant, but
acknowledged its responsibility for submitting proper, completed forms.
Id.
ECA was later hired to perform additional abatement work at the Centralia site. Lemire
affidavit, ¶ 9. ECA sent a second project notification to the Agency by U.S. Mail, postmarked
May 15, 1992. Comp. Mot. Exh. P. The project described consisted of removal of 130 linear
feet of mag block straight pipe insulation, 285 square feet of surface area materials, and 20
cubic feet of joint insulation from the W. G. Murray boiler house.
Id.
The scheduled start date
for the project was May 28, 1992, and the completion date was June 2, 1992.
Id.
On June 8,
1992, ECA sent the Agency a revised notification for this project, changing the completion date
from June 2 to June 9, 1992. Comp. Mot. Exh. Q.
Analysis
The People’s arguments with respect to the Centralia projects are predicated on the
theory that all work done at the Centralia site was part of one big project. Viewed in this way,
the initial notice provided by ECA would clearly have been deficient, containing almost none of
the information required under Section 61.145(b)(4). Likewise, the “revised” notification
submitted in May would have been untimely.
ECA maintains that the work at the Centralia site consisted of two separate projects, and
that since the amount of RACM to be removed in the first project was below the limit set in
Section 61.145(a)(4)(i) the notification requirements of Section 61.145(b) did not apply. ECA
also argues that the second notification and revised notification, considered independent of the
first notification, were sufficient and timely.
We find no support in this record for the People’s contention that all work done at the
Centralia site was one project. According to the dates in the notices, the first project was
completed nearly a month before the notification was provided for the second project, and
nearly two months before work on the second project began. Lemire’s affidavit indicates that
ECA was hired for the second project “later.” The mere fact that both projects took place at
the same site is insufficient to establish that they were not separate removal projects.
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When the two projects are considered separately, it is apparent that the first project was
not subject to the notification requirements of Section 61.145(b), because the amount of RACM
involved was below the threshold amount. Since the notification requirements did not apply,
the notice provided by ECA cannot be considered either late or incomplete. Similarly, if the
second notice is considered the initial notice of a separate project, and not a revised notice in
connection with the first project, it is not untimely. The People have not alleged or argued that
the second notice was insufficient.
Conclusion
The Board grants ECA’s motion for summary judgment with respect to those portions of
counts I and II concerning the Centralia projects, and denies the People’s motion to the same
extent. The Board grants ECA’s motion for summary judgment with respect to count III, and
denies the People’s motion to the same extent.
The Highland Project
Alleged Violations
The amended complaint alleges that the notice submitted for the Highland project was
both untimely (count I) and incomplete (count II).
Facts
ECA was hired to remove 2000 square feet of asbestos-containing floor tile and mastic
from Highland Junior High School. Adm. 55; Comp. Mot. Exh. J; Lemire affidavit at 1.
ECA provided the Agency with notification of the removal project by U.S. Mail, postmarked
May 16, 1991. Comp. Mot. Exh. J. The scheduled start date for the project was May 28,
1991.
Id.
ECA’s notice did not indicate the type of notice being submitted.
Id.
It did not
indicate the number of floors in the facility or the facility’s age.
Id.
It did not indicate the
procedure to be used to detect ACM, nor did it indicate the amount of ACM not to be removed
from pipes at the site.
Id.
The Agency sent ECA a CIL on June 26, 1991, citing violations of Section 9.1(d) of the
Act, Section 114 of the federal Clean Air Act, and 40 C.F.R. 61.145. Comp. Mot. Exh. K.
ECA responded to the CIL by letter on July 2, 1991. Comp. Mot. Exh. L. ECA indicated
that the problem was with the post office, but acknowledged its responsibility for ensuring that
the notice was postmarked as required.
Id.
Analysis
It is undisputed that the notice submitted by ECA was postmarked May 16, 1991, for a
project which began on May 28, 1991. There were two weekends between May 16 and
May 28 in 1991. Thus, the notice was postmarked less than 10 working days prior to the date
work began. Failure to provide notice postmarked at least 10 working days prior to
commencement of work is a violation of 40 C.F.R. 61.145(b)(3)(i). It is likewise undisputed
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that the notice submitted by ECA did not: (1) indicate the type of notice being submitted; (2)
indicate the number of floors in the facility or the facility’s age; (3) indicate the procedure to be
used to detect ACM; or (4) indicate the amount of ACM not to be removed from pipes at the
site. Failure to include these items in a required notice violates 40 C.F.R. 61.145(b)(4)(i), (iv),
and (v). Violation of these regulations would be violations of Section 9.1(d) of the Act. As is
discussed above, however, the provision of the regulation that would be violated by the fourth
identified omission applies only to demolitions. The Highland project was noticed as a
renovation. Accordingly, this omission would not violate 40 C.F.R. 61.145(b)(4)(vi).
While the facts are not disputed, ECA argues that notification requirements did not apply
to the Highland project, and that the notification provided to the Agency was a “courtesy
project notification.” ECA Motion at 9. ECA bases this argument on the definition of
“regulated asbestos containing material” found at 40 C.F.R. 61.141, and the applicability
provisions of 40 C.F.R. 61.145(a). ECA asserts that the ACM removed from the Highland
facility was not RACM, and thus the notice requirements of 40 C.F.R. 61.145(b) were not
triggered. In support of its position ECA cites the affidavit of William Lemire, president of
ECA, in which he states that the Highland project involved removal of 2000 square feet of
Category I nonfriable asbestos-containing floor tile and mastic.
The People acknowledge that floor tile is cited in the definition of Category I nonfriable
ACM, but argue that just because a material is Category I nonfriable ACM does not mean that
it will not become friable during removal. People’s Response at 1. The People point out that
the notice stated that 2000 square feet of RACM were to be removed, and that the methods
listed in the notice are consistent with removal of friable asbestos. People’s Response at 1-2.
Applicability of the notification requirements to ECA is the threshold issue here. The
notification requirements of Section 61.145(b) do not apply unless the amount of RACM to be
removed exceeds the threshold amounts listed in Section 61.145(a)(4)(i). If the material
removed from the Highland facility was RACM, then the notification requirements applied; if it
was not, they did not. On this record, however, we cannot determine whether the material was
RACM or not. We are faced with contradictory statements by ECA in the notice (stating that
2000 square feet of RACM was to be removed) and Lemire in his affidavit (stating that the
material removed was Category I nonfriable ACM). We note that the definition of Category I
nonfriable ACM mentions floor coverings, but not mastic, which is also referenced in the notice
provided by ECA. We have no evidence as to whether the mastic involved was RACM or not.
The Board concludes that issues of material fact remain regarding the nature of material
removed, and consequently whether the notification requirements applied.
Conclusion
Because issues of material fact remain, both motions for summary judgment are denied
with respect to the Highland facility.
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The Quincy Project
Alleged Violations
The amended complaint alleges that the notice submitted for the Quincy project was both
untimely (count I) and incomplete (count II).
Facts
ECA was hired to remove 2,284 linear feet of RACM piping insulation and 60 square
feet of RACM from surface areas at the Gardner-Denver main plant in Quincy. Adm. 17;
Comp. Mot. Exh. G. ECA provided the Agency with notification of the removal project by
U.S. Mail, postmarked December 4, 1992. Comp. Mot. Exh. G. The scheduled start date for
the project was December 17, 1992.
Id.
The notification did not indicate the approximate
amount of non-friable ACM not to be removed from the site.
Id.
The Agency sent ECA a CIL on January 6, 1993, citing violations of Sections 9(a) and
9.1(d) of the Act and 40 C.F.R. 61.145. Comp. Mot. Exh. H. ECA responded to the CIL on
January 19, 1993. Comp. Mot. Exh. I. In its response, ECA acknowledged that “postal
delays in processing are the responsibility of the contractor and that additional time should have
been allowed.”
Id.
; Adm. 23.
Analysis
It is undisputed that the notice submitted by ECA was postmarked December 4, 1992,
for a project which began on December 17, 1992. There were two weekends between
December 4 and December 17 in 1992. Although ECA argues to the contrary, ECA Motion at
14, by our count the notice was postmarked less than 10 working days prior to the date work
began. By failing to provide notice postmarked at least 10 working days prior to
commencement of work, ECA violated 40 C.F.R. 61.145(b)(3)(i) and, by extension, Section
9.1(d) of the Act. Again, ECA’s diligence in attempting to comply, while potentially relevant
to the issue of an appropriate remedy, does not affect our determination of liability.
It is also undisputed that the notice submitted by ECA did not indicate the amount of
non-friable ACM not to be removed from pipes at the site. As is discussed above, however,
the provision of the regulation that would be violated by this omission applies only to
demolitions. The Quincy project was noticed as a renovation. Accordingly, the Board finds no
violation of 40 C.F.R. 61.145(b)(4)(vi) by ECA.
Conclusion
The Board grants the People’s motion for summary judgment to the following extent:
The Board finds that ECA violated 40 C.F.R. 61.145(b)(3)(i) and, consequently, Section 9.1(d)
of the Act with respect to the Quincy project. The Board reserves ruling on the issue of an
appropriate remedy. The Board grants ECA’s motion for summary judgment to the following
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extent: The Board finds that ECA did not violate 40 C.F.R. 61.145(b)(4)(vi) with respect to
the Quincy project.
The Urbana Project
Alleged Violations
The amended complaint alleges that the notice submitted for the Urbana project was
incomplete (count II).
Facts
ECA was hired to remove 1900 linear feet of piping insulation from the Environmental
Sciences Building on the University of Illinois’ Urbana campus. Adm. 12; Comp. Mot. Exh.
D. ECA provided the Agency with notification of the removal project by U.S. Mail,
postmarked November 16, 1992. Comp. Mot. Exh. D. The scheduled start date for the
project was November 30, 1992.
Id.
ECA’s notification did not indicate the procedure and
analytical methods that would be used to detect the presence of ACM, nor did it indicate the
approximate amount of RACM to be removed and ACM not to be removed from the site.
Id.
The Agency sent ECA a CIL on December 1, 1992, citing violations of Sections 9(a)
2
and 9.1(d) of the Act and 40 C.F.R. Part 61. Adm. 16; Comp. Mot. Exh. E. ECA sent a
response to the Agency on December 16, 1992. Comp. Mot. Exh. F. In its response, ECA
took the position that the project for the University fell under the University’s annual
notification, and that it was not required to file a separate notification.
Id.
Analysis
The only alleged violation arising out of the Urbana project is submission of an
incomplete notice (count II of the amended complaint). It is undisputed that the notice submitted
by ECA (1) failed to describe the procedure, including analytical methods, employed to detect
the presence of ACM, and (2) failed to indicate the approximate amount of RACM to be
removed and ACM not to be removed from the site. These omissions would, by themselves,
constitute violations of 40 C.F.R. 61.145(b)(4)(v) and (vi). ECA contends, however, that the
Urbana project was covered by an annual notification submitted by the University of Illinois.
See 40 C.F.R. 61.145(a)(4)(iii); (b)(3)(ii). Consequently, argues ECA, it was not required to
submit a notification in connection with its work.
Although the parties refer in their arguments to an annual notification submitted by the
University, neither party has submitted a copy of the notification document. The only evidence
regarding the notification is the statement in Lemire’s affidavit that Otto Klein of the Agency
2
Although the CIL cited Section 9(a), the complaint filed against ECA does not allege a
violation of that section.
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said that an individual project notification was unnecessary because ECA’s project would be
covered by the University’s annual notification. Lemire affidavit, ¶ 22. While this statement
cannot be considered conclusive, it does infer the existence of the annual notification. The
Board concludes that an issue of fact exists as to whether ECA’s project was covered by an
annual notification filed by the University.
We note the People’s argument that the Urbana project was subject to the notification
requirement because it involved 1900 linear feet of RACM. People’s Response at 3-4. The
issue here is not whether the project was subject to the notification requirement—clearly it was.
The question is rather whether an annual notification submitted by the University covered this
project, and if so, if ECA’s work would be considered a specific nonscheduled operation within
the noticed project. If a project (of whatever size) is covered by an annual notification, a
separate notification is not required even though a specific operation may involve more than the
threshold amount of RACM. See 40 C.F.R. 61.145(b)(3)(i), (ii), (iv).
Conclusion
Because an issue of material fact remains, both motions for summary judgment are
denied with respect to the Urbana facility.
CONCLUSION
The People’s motion for summary judgment is granted to the following extent: The
Board finds that ECA violated 40 C.F.R. 61.145(b)(4)(i), (x), (xi), and (xvi), and consequently
Section 9.1(d) of the Act, with respect to the Alton project. The Board further finds that ECA
violated 40 C.F.R. 61.145(b)(3)(i) and, consequently, Section 9.1(d) of the Act with respect to
the Quincy project.. ECA’s motion for summary judgment is granted with respect to all alleged
violations of Section 112(c)(1)(B) of the federal Clean Air Act, the violations of 40 C.F.R.
61.145(b)(4)(vi) alleged in connection with the Alton and Quincy projects, and all violations
alleged in connection with the Centralia projects. Both motions are denied with respect to the
other violations alleged in the complaint. The Board reserves ruling on an appropriate remedy
for the violations found today pending a hearing on (or other resolution of) the violations not
resolved by this order,
i.e.
, the violation alleged in connection with the Highland and Urbana
projects.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 17th day of February 2000 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
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APPENDIX: REGULATIONS AT ISSUE
Several terms used in the regulations at issue are defined in 40 C.F.R. 61.141:
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.
* * *
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.
Section 61.145 provides in relevant part:
(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:
* * *
(4)
In a facility being renovated, including any individual
nonscheduled renovation operation, all the requirements of
paragraphs (b) and (c) of this section apply if the combined
amount of RACM to be stripped, removed, dislodged, cut,
drilled, or similarly disturbed is
13
(i)
At least 80 linear meters (260 linear feet) on pipes or at
least 15 square meters (160 square feet) on other facility
components[.]
***
(iii)
To determine whether paragraph (a)(4) of this section
applies to planned renovation operations involving
individual nonscheduled operations, predict the combined
additive amount of RACM to be removed or stripped
during a calendar year of January 1 through December 31.
(iv)
To determine whether paragraph (a)(4) of this section
applies to emergency renovation operations, estimate the
combined amount of RACM to be removed or stripped as
a result of the sudden, unexpected event that necessitated
the renovation.
***
(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. ***
(ii)
At least 10 working days before the end of the calendar
year preceding the year for which notice is being given for
renovations described in paragraph (a)(4)(iii) of this
section.
(iii)
As early as possible before, but not later than, the
following working day if the operation is a demolition
14
ordered according to paragraph (a)(3) of this section or, if
the operation is a renovation described in paragraph
(a)(4)(iv) of this section.
(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 . . . 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 * * * .
(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.
(iv)
Description of the facility or affected part of the facility
including the size (square meters [square feet] and number
of floors), age, and present and prior use of the facility.
(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.
* * *
(x)
Description of planned demolition or renovation work to
be performed and method(s) to be employed, including
demolition or renovation techniques to be used and
description of affected facility components.
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(xi)
Description of work practices and engineering controls to
be used to comply with the requirements of this subpart,
including asbestos removal and waste-handling emission
control procedures.
***
(xiii)
A certification that at least one person trained as required
by paragraph (c)(8) of this section will supervise the
stripping and removal described by this notification. This
requirement shall become effective 1 year after
promulgation of this regulation.
***
(xv)
For emergency renovations described in paragraph
(a)(4)(iv) of this section, the date and hour that the
emergency occurred, a description of the sudden,
unexpected event, and an explanation of how the event
caused an unsafe condition, or would cause equipment
damage or an unreasonable financial burden.
(xvi)
Description of procedures to be followed in the event that
unexpected RACM is found or Category II nonfriable
ACM becomes crumbled, pulverized, or reduced to
powder.
(xvii)
Name, address, and telephone number of the waste
transporter.
