STATE OF

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

4832 S. VINCENNES, L.P., an

Illinois limited partnership, and

BATTEAST CONSTRUCTION COMPANY OF

ILLINOIS, INC., an Illinois

corporation,

CLER~’~~

JUL 1 4 ?QO

STATE OF

Po//~tj011Contro/

Respondents.

TO: Mr. Gregory V. Miller, Esq.

Attorney for Respondent

4832 5. Vincennes, L.P.

Miller and Ferguson

9415 South State Street

Chicago, Il. 60619

Mr. Charles W. Murdock

Registered Agent

Batteast Const. Co. of Ill.

Loyola Law School

1 East Pearson

Chicago, Il. 60611

NOTICE OF FILING

PLEASE TAKE NOTICE that we have today, July 14, 2003 filed

with the Office of the Clerk of the Illinois Pollution Control

~oard an original and nine copies of our Complaint, a copy of

which is attached herewith and served upon you.

Failure to file an answer to this complaint within 60 days

may have severe consequences. Failure to answer will mean that

all allegations in the complaint will be taken as if admitted for

purposes of this proceeding. If you have any questions about

this procedure, you should contact the hearing officer assigned

to thIs proceeding, the clerk’s office or an attorney.

NOTIFICATION

YOU ARE HEREBY NOTIFIED that financing may be available

through the Illinois Environmental facilities financing act 20

ILCS 3515/1 

et seq. 

to correct the alleged pollution.

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

-vs

No.

(Enforcement 

Air)

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA 

MADIGAN

Attorney General of the

State of Illinois

BY:

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188 W. Randolph ~  

20th

Fir.

Chicago, IL 60601

(312) 814-1511

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’S 

OF~’~

PEOPLE OF THE STATE OF ILLINOIS, 

)

JUL 1 4 2003

Complainant,                  

Pollution

STATE OF

Control

ILLINOIS

Board

-vs-           

)

NoH’~ I

4832 S. VINCENNES, L.P., an    

)

(Enforcement 

Air)

Illinois limited partnership, and

BATTEAST CONSTRUCTION COMPANY OF

ILLINOIS, INC., an Illinois

corporation,

Respondents.

COMPLAINT

Complainant, People of the State of Illinois, by LISA

MADIGAN, Attorney General of the State of Illinois, complains of

Respondents, 4832 S.. VINCENNES, L.P., an Illinois limited

partnership, and BATTEAST CONSTRUCTION COMPANY OF ILLINOIS, INC.,

an Illinois corporation, as follows:

COUNT I

AIR POLLUTION

1.  This Complaint is brought on behalf of the PEOPLE OF

THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney General of the

State of Illinois, on her own motion and at the request of the

Illinois EPA pursuant to Section 31 of the Illinois Environmental

Protection Act, 415 ILCS 5/31 (2002) (“Act”)

2.  The Illinois EPA is an administrative agency

established in the executive branch of the State government by

Section 4 of the Act, 415 ILCS 5/4 (2002) 

and charged, 

inter

alia, 

with the duty of enforcing the Act.

3.  At all times relevant to this Complaint, Respondent,

4832 S. Vincennes, L.P. (“Vincennes”) was and is the owner of the

property and building located at 4832 South Vincennes Avenue,

Chicago, Cook County, Illinois (“Site”). The building is a

residential four story brick apartment building, containing sixty

seven(67) units.

4.  At all times relevant to this Complaint, Respondent,

Batteast Construction Company of Illinois, (“Batteast”) was the

operator and manager of the renovation of the Site.

5.  On or about August of 2001, or a time better known to

the Respondents, the Respondents began the renovation of the

Site.

6.  On or about December of 2001, or at a time better known

to the Respondents, in the course of the renovation, when

replacing the floors on the first floor, Eatteast discovered

suspect asbestos-containing material(”ACM”) in the basement area.

7.  After the discovery, Eatteast contacted two asbestos

contractors to bid on the removal of 3750 linear feet of ACM

thermal system insulation, and 480 square feet of ACM surface

material on the boiler.

8.  After the discovery of the suspect ACM, the Respondents

continued to employ workers on the site to complete the

renovation.

2

9.  On January 31, 2002, the Illinois EPA performed an

inspection of the building on the Site.

10. On information and belief, no asbestos contractors had

been hired by the Respondents as of January 31, 2002.

11. On January 31, 2002, there was dry, friable suspect ACM

on the pipes and on the floor of the basement. The suspect ACM

appeared in very poor condition and was falling off the pipes.

Demolition debris from the first floor had fallen through and

disturbed a significant amount of the suspect ACM. Various

samples from the basement area were later tested and were

positive for 55-75 chrysotile asbestos.

12. On January 31, 2002, Vincennes refused t stop work, and

Respondent Batteast continued to work on the premises.

•  13. On January 31, 2002, there were several workers at the

Site doing work in and around the first floor area. Most of the

windows and doors were open to the atmosphere. None of the

workers were wearing personal protective equipment or were

utilizing any emission control measures.

14. After the inspection on January 31, 2002, the City of

Chicago, which was providing some of the funding for the

renovation, was contacted.

15. On February 5, 2002, the City of Chicago issued a stop

work order and the renovation work ceased at the site.

3

16. On February 14, 2002, an approved asbestos abatement

and remediation plan commenced, and was completed on February 19,

2002.

17. The total amount of ACM removed was 2400 linear feet of

disturbed ACM, and 6000 square feet of ACM tiles.

18.

•

Section 9(a) of the Act, 415 ILCS 5/9(a) (2002),

provides as follows:

No person shall:

a.  Cause or threaten or allow the discharge or

emission of any contaminant into the environment

in any State so as to cause or tend to cause air

pollution in Illinois, either alone or in

• combination with contaminants from other sources,

or so as to violate regulations or standards

adopted by the Board under this Act;

19. Section 201.141 of the Board’s Air Pollution

Regulations, 35 Ill. Adm. Code 201.141, provides as follows:

No person shall cause or threaten or allow the

discharge or emission of any contaminant into the

environment in any State so as, either alone or in

combination with contaminants from other sources, to

cause or tend to cause air pollution in Illinois, or so

as to violate the provisions of this Chapter 

20. Section 3.115 of the Act, 415 ILCS 5/3.115 (2002),

defines air pollution as:

“AIR POLLUTION” is the presence in the atmosphere of

one or more contaminants in sufficient quantities and

of such characteristics and duration as to be injurious

to human, plant, or animal life, to health, or to

property, or to unreasonably interfere with the

enjoyment of life or property.

21. Section 3.165 of the Act, 415 ILCS 5/3.165 (2002),

defines contaminant as:

“CONTAMINANT” is any solid, liquid, or gaseous matter,

any odor, or any form of energy, from whatever source.

22. Section 3.315 of the Act, 415 ILCS 5/3.315 (2002),

defines person as:

“PERSON” is any individual, partnership, co-

partnership, firm, company, limited liability company,

corporation, association, joint stock company, trust,

estate, political subdivision, state agency, or any

other legal entity, or their legal representative,

agent or assigns.

23. Respondents are “persons” as that term is defined in

Section 3.315 of the Act, 415 ILCS 5/3.315(2002).

24. Asbestos is a “contaminant” as that term is defined by

Section 3.165 of the Act, 415 ILCS 5/3.165 (2002).

25. From December of 2001, or a date better known to

Respondents, through at least February 5, 2002, Respondents

caused or allowed dry friable asbestos containing material to

enter into the environment.

26. As the owner of the property on which the renovation

activity was taking place, the Respondent, Vincennes, caused,

threatened or allowed the discharge or emission of asbestos into

the environment so as to cause or tend to cause air pollution in

that dry, friable asbestos fibers were released into the

atmosphere during the renovation activities.

27. As the party that conducted or managed the renovation

activities, the Respondent, Batteast, caused, threatened or

allowed the discharge or emission of asbestos into the

environment so as to cause or tend to cause air pollution in that

dry, friable asbestos fibers were released into the atmosphere

during renovation activities.

28. By allowing dry friable asbestos containing materials

to remain in a friable state, exposed to the environment,

Respondents have caused or allowed air pollution in Illinois in

violation of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002) and

35 Ill. Adm. Code 201.141.

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order against

Respondents, 4832 S. VINCENNES, L.P., and BATTEAST CONSTRUCTION

COMPANY OF ILLINOIS, INC., on this Count I:

1.  Authorizing a hearing in this matter at which time the

Respondents will be required to answer the allegations herein;

2.  Finding that Respondents have caused or allowed

violations of Section 9(a) of the Act and 35 Ill. Adm. Code

201.141;

3.  Ordering the Respondents to cease and desist from any

further violations of Section 9(a) of the Act and 35 Ill. Adm.

Code 201.141;

4.  Assessing a civil penalty of $50,000.00 against each

Respondent for each violation of the Act and pertinent Board

regulations, with an additional penalty of $10,000.00 per day for

each day that the violations continued;

5.  Taxing all costs in this action, including expert

witness, consultant and attorneys fees, against Respondents; and

6.  Granting such other relief as the Board deems

appropriate and just.

COUNT II

FAILURE TO INSPECT 

AND

TO FOLLOW PROPER EMISSION CONTROL

PROCEDURES

1

22. Complainant realleges and incorporates herein by

reference paragraphs 1 through 17 and 20 through 24 of Count I as

paragraphs 1 through 22 of this Count II.

23. Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)

(2002), provides as follows:

No person shall:

1.  Violate any provisions of Sections 111, 112, 165,

173 of the Clean Air Act, as now or hereafter

amended, or federal regulations adopted pursuant

thereto.

24. Pursuant to Section 112(b) (1) of the Clean Air Act

(“CAA”), 42 

USC 7412(b) 

(1), the Administrator of the United

States Environmental Protection Agency (“USEPA”) has listed

asbestos as a hazardous air pollutant.

25. Section 112(d) of the CAA, 42 USC 7412(d), titled,

Emission Standards, provides in pertinent part as follows:

1.  The Administrator shall promulgate regulations

establishing emission standards for each category

or subcategory of major sources and area •sources of

hazardous air pollutants listed for regulation.

26. Section 112(h) of the CAA, 42 USC 7412(h), titled, Work

Practice Standards and Other Reguirements, provides in pertinent

• part as follows:

1.  For the purposes of this section, if it is not

feasible in the judgment of the Administrator to

prescribe or enforce an emission standard for

control of a hazardous air pollutant or pollutants,

the Administrator may, in lieu thereof, promulgate

a design, equipment, work practice, operation

standard, or combination thereof, which in the

Administrator’s judgment is consistent with the

provisions of subsection (d) or (f) of this section

27. On June 19, 1978, the Administrator determined that

work practice standards rather than emission standards are

appropriate in the regulation of asbestos, 43 Fed. Reg. 26372

(1978), and therefore, pursuant to Section 112 of the CAA, the

USEPA has adopted National Emission Standards for Hazardous Air

Pollutants (NESHAPs), including asbestos, 40 CFR 61, Subpart M.

28. Section 61.141 of the USEPA’s NESHAPs, 40 CFR 61.141

(July 1, 1997), provides, in part, as follows:

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.~

8

Asbestos 

means the asbestiform varieties of serpentinite

(chrysotile), riebeckite (crocidolite), cummingtonite-

grunerite, anthophyllite, and actinolite-tremolite.

Category II nonfri able ACM 

means any material, excluding

Category I nonfriable ACM, containing more than 1 percent

asbestos as determined using the methods specified in

appendix A, subpart F, 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.

Friable asbestos material 

means any material containing

more than 1 percent asbestos as determined using the

method specified in appendix A, subpart F, 40 CFR 763

section 1, Polarized Light Microscopy, that, when dry can

be crumbled, pulverized, or reduced to powder by hand

pressure. If the asbestos content is less than 10

percent as determined by a method other than point

counting by polarized light microscopy (PLM), verify the

asbestos content by point counting using PLM.

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.

9

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.

Remove 

means to take our RACM or facility components that

contain or are covered with RACM from any facility.

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. Operations

in which load-supporting structural members are wrecked

or taken out are demolitions.

29. The building as referenced herein is a “facility” as

that term is defined in 40 CFR 61.141.

30. The replacement of the floors at the building

constitutes a “renovation” as that term is defined in 40 CFR

61. 141.

31. Respondent Vincennes, as the owner of the building, was

the “owner” of the renovation activities, as that term is defined

in 40 CFR 61.141.

32. Respondent Batteast, as the person that operated,

controlled or supervised the renovation activities, was the

“operator” of the renovation activities, as that term is defined

in 40 CFR 61.141.

33. Section 61.145(a) of Title 40 of the Code of Federal

RegulatiOns, 40 CFR 61.145(a) (July 1, 1998), as adopted in

10

Section 9.1(d) of the Act, titled, Standard for demolition and

renovation: provides, in pertinent part, as follows:

(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.

***

34. Section 61.145(c) (1) of USEPA’s NESHAP5, 40 CFR

61.145(c) (1) (July 1, 2002), titled, Standard for demolition and

renovation: Procedures for asbestos emission control, provides

in pertinent part as follows:

Each owner or operator of a demolition or renovation

activity to whom this paragraph applies, according to

paragraph (a) of this section, shall comply with the

following procedures:

(1) Remove all RACM from a facility being

demolished or renovated before any activity begins

that would break up, dislodge, or similarly

disturb the material or preclude access to the

material for subsequent removal.

•*

35. Section 61.145(c) (6) of USEPA’s NESHAP5, 40 CFR

6l.l45(c)(6) (July 1, 2002), as adopted in Section 9.1(d) of the

Act, titled, Standard for demolition and renovation: Procedures

for asbestos emission control, provides, in pertinent part, as

follows:

11

Each owner or operator of a demolition or renovation

activity to whom this paragraph applies, according to

paragraph (a) of this section, shall comply with the

following procedures:

***

(6) For all RACM, 

•

including material that has been

removed or stripped:

(i) Adequately wet the material and ensure that it

remains wet until collected and contained or

treated in preparation for disposal in

accordance with §61.150; 

36. Respondents, as owners and operators of a renovation

activity, failed to conduct a thorough inspection of the facility

for the presence and location of asbestos before commencing

renovation activities in violation of the Clean Air Act, or more

specifically the NESHAP for asbestos and therefore were in

violation of Section 9.1(d) (1) of the Act, 415 ILCS

5/9.1(d) (1) (2002) and 40 CFR 61.145 (a)

37. Respondents, as owners and operators of a renovation

activity, failed to remove all RACM from a facility being

renovated or demolished before an activity began that would break

up, dislodge, or similarly disturb the material or preclude

access for subsequent removal in violation of the Clean Air Act,

or more specifically the NESHAP for asbestos and therefore are in

violation of Section 9.1(d) (1) of the Act, 415 ‘ILCS 5/9.1(d) (1)

(2002) and 40 CFR 61.145(c) (1).

12

38. Respondents failed to adequately wet all RACM and

ensure that it remained wet until collected and contained or

treated in preparation for disposal in violation of Section

9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1) (2002) and 40 CFR

61.145(c) (6)

39. The Respondents, by the actions or inactions as alleged

herein, have violated Section 9.1(d) (1) of the Act, 415 ILCS

5/9.1(d) (1) (2002), and 40 CFR6l.l45(a), (c) (1), and (c)(6).

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order against

Respondents, 4832 S. VINCENNES, L.P., and BATTE~STCONSTRUCTION

COMPANY OF ILLINOIS, INC., on this Count II:.

1.  Authorizing a hearing in this matter at which time the

Respondents will be required to answer the allegations herein,;

2.  Finding that Respondents have caused or allowed

violations of Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)

(2002), and 40 CFR 61.145(a), (c) (1), and (c) (6);

3.  Ordering the Respondents to cease and desist from any.

further violations of Section 9.1(d) (1) of the Act and 40 CFR

61.145(a) 

(c) (1) 

and (c) (6)

4.  Assessing a civil penalty of Fifty Thousand Dollars

($50,000.00) against each Respondent for each and every violation

of the Act and pertinent regulations, with an additional penalty

13

of Ten Thousand Dollars ($10,000.00) per day for each day of

violation;

5..  Ordering Respondents to pay all costs, including

attorney, expert witness and consultant fees expended by the

State in its pursuit of this action; and

6.  Granting such other relief as this Board deems

appropriate and just.

PEOPLE OF THE STATE OF ILLINOIS

LISA MADIGAN,

Attorney General of the

State of Illinois

MATTHEW J. DUNN, Chief

Environmental Enforcement/Asbestos

L gation Divis~n

By:

Envinthen~ureau e

Assistant Attorney General

Of Counsel:

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188 West Randolph Street, .20th Floor

Chicago, IL 60601

(312) 814-1511

14

CERTIFICATE OF SERVICE.

I, PAULA BECKER WHEELER, an attorney, do certify that I

caused to be served this 14th day of July, 2003, the foregoing

Complaint and Notice of Filing upon the persons listed on said

Notice, by Certified Mail.

PAULA BECKER WHEELER