ILLINOIS POLLUTION CONTROL BOARD
January 21, 1999
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
G.M. DEMOLITION CORPORATION, an
Illinois corporation
Respondent.
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PCB 96-261
(Enforcement - Air)
ORDER OF THE BOARD (by N. J. Melas):
This matter is before the Board on the November 4, 1998 “Complainant’s Motion for
Reconsideration” (mot.) filed by the Illinois Attorney General’s Office on behalf of the People
of the State of Illinois (complainant). In the motion, complainant asks that the Board
reconsider portions of its October 1, 1998 order. See People v. G.M. Demolition Corp.
(October 1, 1998), PCB 96-261. On December 8, 1998, G.M. Demolition Corporation
(GMDC) filed a response opposing the motion (resp.), and on December 31, 1998,
complainant filed a reply to GMDC’s response (reply). The Board grants the motion for
reconsideration. The Board affirms in part and reverses in part its October 1, 1998 order.
Complainant initiated this action on June 24, 1996, alleging that respondent violated
Section 9.1(d) of the Illinois Environmental Protection Act (415 ILCS 5/9(d) (1996)) and
Section 61.145 of the asbestos National Emission Standard for Hazardous Air Pollutants
(NESHAP). 40 C.F.R. § 61.145 (1997). Complainant alleged that GMDC failed to timely
and completely file notices of demolition with the Illinois Environmental Protection Agency
(Agency) for several buildings in Cook County and one in Kankakee County.
In the October 1, 1998 order, the Board granted complainant’s motion for summary
judgment in part and denied it in part. G.M. Demolition, PCB 96-261, slip op. at 11-13. It
also granted respondent’s motion for summary judgment in part and denied it in part.
Id.
The
Board directed remaining issues and penalty matters to hearing.
Id.
Complainant disputes four points in the Board’s order where the Board granted
summary judgment in favor of GMDC. Those points are:
1.
The structure at 21625 Oak Street in Matteson (21625 structure) was a residence
and not subject to the asbestos NESHAP. Mot. at 2-4.
2.
Notice to the Agency was timely for demolition for the AKC Haunted House
at 231 East Broadway in Bradley (AKC). Mot. at 4-5.
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3.
There was revised notice for the demolition of AKC. Mot. at 5-8.
4.
GMDC need not have included the analytical method for determining the
presence of asbestos in the notice to the Agency for the Silo Appliance Store at
17511 South Halsted in Homewood (Silo), the Good Humor Building at 10
North First Avenue in Maywood (Good Humor), and the Whiskey A-Go-Go at
7-9 South State Street in Calumet City (Go-Go). Mot. at 8-10.
STANDARD
In ruling on a motion for reconsideration, the Board is to consider factors including,
but not limited to, error in the previous decision and facts in the record which are overlooked.
35 Ill. Adm. Code 101.246(d). In Citizens Against Regional Landfill v. County Board of
Whiteside County (March 11, 1993), PCB 93-156, the Board stated that “[t]he intended
purpose of a motion for reconsideration is to bring to the court’s attention newly-discovered
evidence which was not available at the time of the hearing, changes in the law, or errors in
the court’s previous application of the existing law.” Korogluyan v. Chicago Title & Trust
Co., 213 Ill. App. 3d 622, 572 N.E.2d 1154 (1st Dist. 1992).
DISCUSSION
1. 21625 Structure is a Residence
According to the asbestos NESHAP, demolition companies that demolish structures
must provide notice to the Agency. 40 C.F.R. § 61.145(a) (1997)
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. A facility is “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).” (Emphasis added.) 40 C.F.R. § 61.141 (1997). In the order,
the Board determined that the 21625 structure was not a facility. G.M. Demolition, PCB 96-
261, slip op. at 3-4. Complainant contends that the 21625 structure was not a residence with
four or fewer units because (1) the structure was a farmhouse owned by a company and (2)
respondent filed a notification form with the Agency implying that respondent believed the
structure was subject to the asbestos NESHAP. Mot. at 3; reply at 1-2. Complainant states
that there is not enough evidence to state definitively if the 21625 structure is a single family
residence or a commercial farming operation. Mot. at 3-4; reply at 1-2.
Complainant presents no new evidence or changes in the law in its first contention; the
Board already considered the evidence regarding the commercial farming operation in its
order. Complainant’s second contention is new, but it cannot be classified as new evidence, a
change in the law, or errors in the previous application of the law. Furthermore, the Board
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The asbestos NESHAP requires demolition companies to provide notice to the Administrator
of the United States Environmental Protection Agency (USEPA). This program has been
delegated to the State of Illinois. Although the notification forms are sent to both the USEPA
and the Agency, complainant’s allegations concern notification to the Agency only.
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finds that the filing of a notification form does not necessarily imply that GMDC knew that the
21625 structure was a facility for purposes of the asbestos NESHAP. The Board affirms its
decision from the October 1, 1998 order on point one.
2. Timely Notice for AKC
The asbestos NESHAP provides that demolition companies must postmark or deliver
the notice “10 working days before the demolition begins.” 40 C.F.R. § 61.145(b)(3)(i)
(1997). The Agency received the original notification that GMDC submitted for the AKC
demolition eight working days prior to the start of the demolition. Mot. at 4. It is undisputed
that, at the request of the Agency, GMDC delayed the beginning of the demolition for two
working days in order to afford the Agency ten working days’ notice. Mot. at 4; resp. at 2-3;
reply at 3-4. Complainant offers no new evidence in the motion or reply to dispute this fact,
other than to offer a hypothetical scenario in which GMDC should have resubmitted notice to
the Agency and then wait ten working days after resubmission. Mot. at 4. Nothing in the
asbestos NESHAP requires GMDC to do this.
The Board notes that timely notice should be submitted in written form at least ten days
prior to demolition activity. 40 C.F.R. § 61.145(b)(3)(i) (1997); reply at 3. GMDC only
provided eight working days of notice, but the Agency requested that GMDC wait an
additional two working days. Mot. at 4; resp. at 2-3; reply at 3-4. As a result, GMDC’s
notice provided ten working days notice prior to the start of the demolition.
The Board affirms its decision from the October 1, 1998 order on point two.
3. Revised Notice for AKC
Complainant disputes the Board’s finding that GMDC submitted a revised notice for the
AKC demolition. Mot. at 5-8. In the order, the Board determined that GMDC was late in
submitting the revised notice for the revised demolition. G.M. Demolition, PCB 96-261, slip
op. at 5-6. However, complainant insists that AKC submitted no revised notice as opposed to
late revised notice. Mot. at 8; reply at 4. If complainant alleged that GMDC filed a late
revised notice, the Board might possibly have found in complainant’s favor on this point.
Complainant provides a laundry list of items that it claims were left out of GMDC’s revised
notice for AKC, but alleges no new facts, changes in law, or errors in the previous application
of the law. Mot. at 7-8. The Board affirms its decision from the October 1, 1998 order on
point three.
4. Analytical Method
The asbestos NESHAP provides that the “procedure, including analytical methods”
used to detect asbestos must be included in the notice. 40 C.F.R. § 61.145(b)(4)(v) (1997).
Complainant contends that GMDC violated the asbestos NESHAP when it did not include the
procedure for detecting asbestos for the Silo, Good Humor, and Go-Go facilities. Mot. at 8-
10; reply at 4-5.
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Section IX of the notification form states that the regulated entity must include the
“analytical method, if appropriate, used to detect the presence of asbestos material.” G.M.
Demolition, PCB 96-261, slip op. at 9. The word “procedure” is not mentioned at Section
IX. GMDC concluded that it was inappropriate to describe the analytical method to detect
asbestos so it left Section XI of the notification forms blank for those three structures.
The notification form is provided by the Agency and, according to complainant, is
provided for the convenience of regulated entities. Reply at 4. The Agency’s form is
misleading. However, the form does not excuse GMDC from complying with the
requirements of the asbestos NESHAP. The asbestos NESHAP clearly states that GMDC
must provide the Agency with the “procedure”. 40 C.F.R. § 61.145(b)(4)(v) (1997). GMDC
did not provide the Agency with the procedure that it used to detect asbestos at the Silo, Good
Humor, and Go-Go demolitions. The Board reverses its decision from the October 1, 1998
order on point four. The Board will consider the Agency’s misleading form when it decides
the penalty issue for this point.
CONCLUSION
Complainant’s motion for reconsideration is granted, but the Board affirms its
October 1, 1998 order on points one, two, and three. The Board has reconsidered point four
and reverses its October 1, 1998 order on that point. The parties are urged to expeditiously
proceed to hearing consistent with this order.
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 21st day of January 1999 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
