ILLINOIS POLLUTION CONTROL BOARD
May 4, 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):
Currently before the Board is “Complainant’s Motion for Reconsideration,” filed on
March 27, 2000, seeking reconsideration of a finding by the Board in its order of February 17,
2000. Specifically, complainant asks the Board to reconsider its finding that an issue of material
fact existed as to respondent Environmental Control and Abatement, Inc.’s (ECA) liability for
violation of asbestos regulations in connection with an asbestos removal project in Urbana,
Illinois.
1
ECA filed a response opposing complainant’s motion on April 4, 2000. Upon
reconsideration, the Board concludes that complainant is correct that each individual
nonscheduled renovation operation requires a separate notification to the Illinois Environmental
Protection Agency (Agency) if the renovation operation involves asbestos above the regulatory
threshold amount. Accordingly, the Board modifies its order of February 17, 2000 to grant
summary judgment in complainant’s favor with respect to the violations of 40 C.F.R. 61.145
and 415 ILCS 5/9.1(d) alleged in connection with the Urbana project.
This case involves alleged violations of provisions of the National Emission Standards
for Hazardous Air Pollutants (NESHAP) for asbestos. The asbestos NESHAP is codified at 40
C.F.R. 61 Subpart M, which includes 40 C.F.R. 61.145. The alleged violations of this federal
regulation are within the Board’s jurisdiction because Section 9.1(d) of the Illinois
Environmental Protection Act (Act), 415 ILCS 5/9.1(d) (1998), prohibits violation of any
regulation adopted pursuant to Section 112 of the federal Clean Air Act, 42 U.S.C. 7412.
The Urbana project involved the removal of 1,900 linear feet of asbestos-containing
piping insulation from a building owned by the University of Illinois. Section 61.145 requires
each owner or operator of a renovation activity to provide notice of the proposed activity to the
Agency if the amount of regulated asbestos-containing material (regulated ACM, or RACM)
involved exceeds a certain threshold. (See Section 61.145(a)(4)(i) for threshold amounts and
Section 61.145(b) for notice requirements.)
1
The Board’s February 17, 2000 order addressed alleged violations at five different project
sites, but complainant’s motion involves only rulings in connection with the Urbana site.
2
The relevant provisions of Section 61.145 provide:
(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
(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.
* * *
(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:
3
(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.
* * *
(4)
Include the following in the notice:
* * *
(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.
These provisions require a notice to be submitted to the Agency if a renovation will
involve asbestos above a certain threshold amount. The regulation provides for different types
of notices to be used in different circumstances, two of which are of concern to us in this case:
a standard ten-day notice of an upcoming operation (Section 61.145(b)(3)(i)) and an annual
notice covering various individual nonscheduled renovation operations to be undertaken in the
coming calendar year (Section 61.145(b)(3)(ii)). ECA submitted a ten-day notice for the
Urbana project, but it lacked the information required under Section 61.145(b)(4)(v) and (vi).
ECA argued, however, that the project had been covered by an annual notice submitted by the
University. The annual notification was not submitted in connection with the parties’ summary
judgment motions. ECA argued that it was not required to submit an individual notice of the
project—the notice it provided was submitted merely as a courtesy to the Agency—so any
defects in the ten-day notice it did submit would not have been violations of the NESHAP
regulations.
4
In its February 17, 2000 order, the Board found that an issue of material fact existed as
to the existence and scope of an annual notification for the Urbana facility. The Board
concluded that if such a notification was submitted, it could have covered ECA’s work. In its
analysis, the Board stated:
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). People v. Environmental Control and
Abatement, Inc. (February 17, 2000), PCB 95-170, slip op. at 11.
Among the purposes of a motion for reconsideration is to bring to the tribunal’s attention
errors in the application of existing law. Korogluyan v. Chicago Title & Trust Co., 213 Ill.
App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1991); see also 35 Ill. Adm. Code
101.246(d). In seeking reconsideration, complainant asserts that the Board erred in its
application of Section 61.145. Based on the language of Section 61.145(a)(4), complainant
argues that, notwithstanding any annual notice that may have been submitted, where the amount
of RACM involved in a particular nonscheduled renovation operation exceeds the regulatory
threshold, a separate notice must be provided for that nonscheduled renovation operation.
Complainant cites no authority in support of its arguments. Nevertheless, given
complainant’s arguments, the Board has identified an ambiguity in the terms of Section 61.145.
Paragraphs (a)(4), (a)(4)(iii), (b)(3)(i) and (b)(3)(ii) can credibly be read either to require a
separate notice for individual nonscheduled operations that involve more than the threshold
amount of RACM (as urged by complainant) or to permit an annual notice to cover such
nonscheduled operations (as the Board ruled in its February 17, 2000 order). To resolve this
ambiguity, we have reviewed the comments of the United States Environmental Protection
Agency in connection with the amendments to Section 61.145 that added these provisions. We
note the following statement from the “Notice of Proposed Rule Revision” published at 54 Fed.
Reg. 912 (January 10, 1989):
To clarify whether planned renovations involving individual, nonscheduled
operations must comply with the notification provisions of § 61.145(b),
paragraph (a)(4)(i), is modified to require that the additive amount of asbestos to
be removed or stripped over a calendar year of January 1 through December 31
be used instead of over the “maximum period of time a prediction can be made
not to exceed 1 year.” This clarifies the intent of the current regulation to cover
individual, nonscheduled asbestos removal operations involving small amounts of
asbestos if the total amount of asbestos that will be removed in 1 year is
5
projected to exceed the quantities of asbestos specified in § 61.145(a). When
individual renovations exceed the cutoff, a separate notification is required. 54
Fed. Reg. at 917 (emphasis added).
Based on this federal comment, we conclude that complainant is correct that a separate
notice was required for the Urbana project, notwithstanding that the University may have
submitted an annual notice, because the project involved more than the regulatory threshold
amount of RACM,
i.e.
, 1,640 linear feet over the threshold level of 260 linear feet. Neither
party disputes that the notice submitted by ECA in connection with the Urbana project 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 from the site, as
required by Section 61.145(b)(4)(v) and (vi). Accordingly, summary judgment should have
been entered in complainant’s favor with respect to the alleged violations of Section
61.145(b)(4) and Section 9.1(d) of the Act.
Therefore, that portion of the Board’s February 17, 2000 order denying complainant’s
motion for summary judgment with respect to alleged violations of Section 61.145(b)(4)(v) and
(vi) and Section 9.1(d) of the Act in connection with the Urbana project is vacated, and the
Board grants complainant’s motion for summary judgment on those alleged violations. The
Board reserves ruling on the issue of an appropriate remedy pending a hearing on the alleged
violations not resolved in this order or the Board’s order of February 17, 2000.
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 4th day of May 2000 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
