RECEIVEDCLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN 2 92004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATEOFILLINOJS
Pollution Control Board
Complainant,
vs.
)
POE No. 04-
1 ~
IMTERSTATE
BRANDS
CORPORATION,
a. Delaware corporation,
Respondent.
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that on January 29, 2004, the People of
the State of Illinois filed with the Illinois Pollution Control
Board a Complaint, true and correct copies of which are attached
and hereby 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.
Respectfully submitted,
LISA
MADIGAN
Attorney General
State of Illinois
BY:
___________
JOEL J. STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-6986
THIS FILING IS SUBMITTED ON RECYCLED PAPER
SERVICE LIST
Mr. Paul Duffy, Esq.
Winston & Strawn
35 W. Wacker Drive
Chicago, Illinois 60601
Mr. Kent Magill, Esq.
Vtce President,
Corp. Counsel & Corp. Secretary
Interstate Brands Corporation
12 East Armour Blvd.
Kansas City, MO 64111
Interstate Brands Corporation
c/’o CT Corporation System
208 S. LaSalle St., Suite 814
Chicago, IL 60604-1101
Mr. Chris Pressnall, Esq.
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62702
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JAN 292004
PEOPLE OF THE STATE OF ILLINOIS,
)
Pollution
STATEOFILLINOIS
Control Board
Complainant,
vs.
)
PCE No. 04-/~~
INTERSTATE
BRANDS CORPORATION,
a Delaware corporation,
Respondent.
COMPLAINT FOR
CIVIL
PENALTIES
Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the
State of Illinois, complains of
Respondent,
INTERSTATE BRANDS CORPORATION, as follows:
COUNT I
FAILURE TO
FOLLOW
NOTIFICATION REQ~LIREMENTS
1. This count is brought on behalf of the PEOPLE OF TE
STATE OF ILLINOIS, by LISA MADIGAN, the Attorney General of the
State of Illinois, on her own motion and at the request of the
Illinois Environmental Protection Agency (“Illinois EPA”)
pursuant to the terms and provisions of Section 31 of the
Environmental Protection Act (“Act”) 415 ILCS 5/31 (2002)
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,
•-1—
Interstate Brands Corporation (“IBC”) was and is a Delaware
corporation registered to do business in Illinois.
4. At all times relevant to this Complaint, IBC has owned
and operated a plant located at 9555 W. Soreng, Schiller Park,
Cook County, Illinois.
5. At its plant, IBC produces and packages for
distribution numerous bakery products under the Hostess brand
name, including but not limited to, Hostess Twinkies and Ho Ho’s.
6. IBC had a hot water storage tank (“water tank”) at its
plant. The water tank, from which lEO removed asbestos-
containing insulation material, was 15 feet long and 4 feet in
diameter with round ends. The surface area of the water tank was
greater than 160 square feet.
7. The water tank was located in the IBC plant’s boiler
room. The boiler room is located adjacent to the production area
of the plant.
8.
On January 11, 1998, IBC employees, acting
pursuant to instructions
from IEC’s operations manager, removed
friable asbestos-containing
insulation material from the water
tank.
9. On January 11, 1998, IBC wheeled the uncontained
asbestos-containing
insulation material through the plant’s
production area in an open cart, and in doing so caused the dry
and friable asbestos-containing
insulation materials to be as
-2-
close as 10 to 20 feet from the plant’s food production lines.
10.
IBC failed to maintain barriers between the boiler room
and the production area while asbestos removal activities
were
taking place.
11.
IEC failed to ensure that the employees involved in the
asbestos removal activities
wore appropriate protective
equipment
during the removal activities.
12.
From January 11, 1998 through January 23, 1998, lEO
allowed unlimited access to the boiler room in which gross
asbestos contamination was observed on January 23, 1998.
13.
An Illinois
Department of Public Health (“IDPH”)
inspector inspected the lEO facility on January 23, 1998.
14.
The IDPH inspector observed gross debris, which
included chunks, dust and various sized pieces of suspect
asbestos-containing
building material on floors and other
horizontal
surfaces in the boiler room. Some asbestos material
pieces that the IDPH inspector observed were the size of a
baseball.
15.
The IDPH inspector also observed uncovered finished
bakery products within 20 feet of where the asbestos removal
activities
had taken place.
16.
The IDPH inspector took three (3) samples of suspect
material found lying on the floor in the boiler room.
17.
All three of the IDPH inspector’s
samples tested
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positive for asbestos.
One sample contained 5-10
chrysotile
asbestos and 10-15
amosite asbestos.
One sample contained 70-
80
chrysotile
asbestos.
One sample contained 20-30
amosite
asbestos.
Amosite is an asbestiform variety of cummingtonite-
grunerite asbestos.
18. At the request of the Illinois
EPA, an inspector for
the Cook County Environmental Control Department (“CCECD”) also
inspected the lEO facility
on January 23, 1998.
The CCECD
inspector observed a pile of grey fibrous suspect asbestos
material under the water tank.
The pile of suspect debris was
approximately
4 inches high, 6 feet long and 1 foot wide.
The
CCECD inspector took two samples of the suspect debris.
One
sample contained 30
amosite asbestos,
and the other sample
contained 60 chrysotile
asbestos.
19. As observed by both inspectors,
IBC caused or allowed
friable asbestos material to be deposited, uncontained,
on the
floor in the boiler room ht the IBC facility.
20.
lEO recalled the potentially
contaminated bakery
products.
Some of the recalled bakery products were disposed of
as asbestos-containing
material.
21.
Asbestos is a known human carcinogen.
22.
Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)
(2002)
,
provides as follows:
-4-
No person shall:
1. Violate any provisions of Sections 111, 112, 165,
or 173 of the Clean Air Act, as now or hereafter
amended, or federal regulations adopted pursuant
thereto
.
23. 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.
24. Section 112 (d) of the
CAA, 42 US 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
25. Section 112(h) of the CAA, 42 USC 7412(h), titled, Work
Practice Standards and Other Requirements, 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
. .
26. On June 19, 1978, the Administrator determined that
work practice standards rather than emission standards are
appropriate in the regulation of asbestos (see 43 Fed. Req. 26372
-5-
(1978))
,
and therefore, pursuant to Section 112 of the
CAA,
the
USEPA has adopted NESHAPs, including a NESHAP for asbestos, 40
CFR 61, Subpart N.
27. Section 61.141 of the asbestos NESHAP, 40 CFR 61.141
(July 1, 2003)
,
provides, in pertinent 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.
Asbestos
means the abestiform varieties of serpentinite
(chrysotile)
,
riebeckite (crocidolite)
,
cummingtonite-
grunerite, anthophyllite, and actinolite-tremolite.
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 E, subpart E, 40 CFR part
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.
-6-
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.
Regulated asbestos-containing material
(RACM)
means (a)
Friable asbestos material, (b) Category I nonfriable
ACM (asbestos containing material) 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.
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.
28. Section 61.145(a) of the asbestos NESHAP, 40 CF.R
61.145(a), titled, Standard for demolition and renovation;
Applicability, provides in pertinent part as follows:
(4) In a facility being renovated, i~:cludingany
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, 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, or
(ii) At least 1 cubic meter (35 cubic feet) off
facility components where the area could not
be measured previously.
29. The asbestos-containing material found at the IBC
facility is “regulated asbestos-containing material (RACM)” as
-7-
that term is defined in 40 CFR 61.141.
30. The IBC plant at which the asbestos removal activities
took place is a “facility” as that term is defined in 40 CFR
61.141.
31. The removal of the asbestos-containing insulation
material from the water tank at the 130 facility that occurred on
January 11, 1998 was a “renovation” as that term is defined in 40
CFR 61.141.
32. lEO, as the owner and operator of the lEO facility at
which the asbestos removal operation took place, was the “owner”
and operator” of the renovation activity, as those terms are
defined in 40 CFR 61.141.
33. The amount of RACM removed by lEO during the asbestos
renovation at the facility was in excess of 160 square feet.
34. IBO failed to properly notify the Illinois EPA of the
asbestos removal activities prior to their taking place.
35. Section 61.145(b) of the asbestos NESHAP, 40 CFR
61.145(b), as adopted in Section 9.1(d) of the Act, titled,
Standard for demolition and renovation: Notification
requirements, provides in pertinent part as follows:
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 service is
acceptable.
-8-
***
(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 an asbestos material), if the
operation is described in paragraphs (a) (1)
and (4) (except (a) (4) (iii) and (a) (4) (iv))
of this section. If the operation is as
described in paragraph (a) (2) of this
section, notification is required 10 working
days before demolition begins.
36. Respondent conducted its renovation activities on
January 11, 1998 without providing notice to the Administrator or
to Illinois EPA about the renovation activities.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent IBO on Count I:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2. Finding that Respondent has violated Section 9.1(d) (1)
of the Act, 415 ILOS 5/9.1(d) (1) (2002), and Section 61.145(b) of
the asbestos NESHAP, 40 CFR 61.145(b);
3.
Ordering Respondent to cease and desist from further
violations of Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)
(2002), and Section 61.145(b) of the asbestos NESHAP, 40 CFR
61.145(b);
4. Assessing against Respondent a civil penalty of Fifty
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Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
COUNT II
FAILURE TO REMOVE ALL RACM BEFORE RENOVATION BEGINS
1-32. Complainant realleges and incorporates herein by
reference paragraphs 2 through 33 of Count I as paragraphs 1
through 32 of this Count II.
33. This Count is brought on behalf of the PEOPLE OF THE
STATE OF ILLINOIS by LISA MADIGAN, the Attorney General of the
State of Illinois, on her own motion pursuant to the terms and
provisions of Section 31 of the Act 415 ILOS 5/31 (2002)
34. Section 61.145(c) (1) of the asbestos NESHAP, 40 OFR
61.145(c) (1), as adopted in Section 9.1(d) of the Act, titled,
Standard for demolition and renovation: Procedures for asbestos
emission control, provides as follows:
Procedures for asbestos emission control. 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:
-10-
(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. RACM need not be removed
before demolition if:
(i)
It is Category I nonfriable ACM that is not
in poor condition and is not friable.
(ii) It is on a facility component that is encased
in concrete or other similarly hard material
and is adequately wet whenever exposed during
demolition; or
(iii It was not accessible for testing and was,
therefore, not discovered until after
demolition began and, as a result of the
demolition, the material cannot be safely
removed. If not removed for safety reasons,
the exposed RACM and any asbestos-
contaminated debris must be treated as
asbestos-containing waste material and
adequately wet at all times until disposed
of.
(iv) They are Category II nonfriable ACM and the
probability is low that the materials will
become crumbled, pulverized, or reduced to
powder during demolition.
35. Respondent failed
to
remove all RACM from its facility
before breaking up, dislodging, and disturbing the P11CM. None of
the exceptions in Section 61.145(c) (1) of the asbestos NESHAP
apply to Respondent’s activities at its facility.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent lEO on Count II:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
-11-
2. Finding that Respondent has violated Section 9.1(d) (1)
of the Act, 415 ILOS 5/9.1(d) (1) (2002), and Section 61.145(c) (1)
of the asbestos NESHAP, 40 CFR 61.145(c) (1)
3. Ordering Respondent to cease and desist from further
v~,o1ationsof Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)
(2002), and Section 61.145(c) (1) of the asbestos NESHAP, 40 OFR
61.145 (c) (1)
4. Assessing against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
COUNT
III
FAILURE TO ADEQUATELY WET RACM
1-33. Complainant realleges and incorporates herein by
reference paragraphs 1 through 33 of Count I as paragraphs 1
through 33 of this Count III.
34. On January 11, 1998, during the asbestos renovation
activities, IBC failed to follow proper emission control
procedures such as keeping the dry and friable P11CM wet.
-12-
35. Sections 61.145(c) (3) and (c) (6) of the asbestos
NESHAP, 40 OFR 61.145(c) (3) and (c) (6), 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:
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:
***
(3) When P11CM is stripped from a facility component
while it remains in place in the facility,
adequately wet the P11CM during the stripping
operation.
***
(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 861.150;
.
36. Respondent failed to adequately wet the P11CM while it
was stripping the RAOM from the water tank at its facility.
37. Respondent also failed to adequately wet the stripped
P11CM until collected and contained in preparation for disposal.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent lEO on Count III:
1. Authorizing a hearing in this matter at which time
-13-
Respondent will be required to answer the allegations herein;
2. Finding that Respondent has violated Section 9.1(d) (1)
of the Act, 415 ILCS 5/9.1(d) (1) (2002), and Section 61.145(c) (3)
and (c) (6) of the asbestos NESHAP, 40 CFR 61.145(c) (3) and
(a) (6);
3. Ordering Respondent ?o cease and desist from further
violations of Section 9.1(d) (1) of the Act, 415 ILOS 5/9.1(d) (1)
(2002), and Section 61.145(c) (3) and (c)(6) of the asbestos
NESHAP, 40 CFR 61.145(c) (3) and (c) (6);
4. Assessing against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
COUNT IV
FAILURE
TO
HAVE A TRAINED PERSON PRESENT FOR RACM REMOVAL
1-33. Complainant realleges and incorporates herein by
reference paragraphs 1 through 33 of Count I as paragraphs 1
through 33 of this Count IV.
34. Section 61.145(c) (8) of the asbestos NESHAP, 40 OFR
-14-
61.145(c) (8), 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:
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:
***
(8) Effective 1 year after promulgation of this
regulation, no P11CM shall be stripped, removed, or
otherwise handled or disturbed at a facility
regulated by this section unless at least one on-
site representative, such as a foreman or
management-level person or other authorized
representative, trained in the provisions of this
regulation and the means of complying with them,
is present
.
35. On January 11, 1998, Respondent conducted its
renovation activities, including stripping, removing, or
otherwise handling or disturbing P11CM at the facility, without
having present at least one on-site representative trained in the
provisions of the asbestos NESHAP and the means of complying with
the asbestos NESHAP.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent 130 on Count IV:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2. Finding that Respondent has violated Section 9.1(d) (1)
of the Act, 415 ILOS 5/9.1(d) (1) (2002), and Section 61.145(c) (8)
-15-
of the asbestos NESHAP, 40 CFR 61.145(c) (8);
3. Ordering Respondent to cease and desist from further
violations
of Section 9.1(d) (1) of the Act, 415 ILOS 5/9.1(d) (1)
(2002), and Section 61.145(c) (8) of the asbestos NESHAP, 40 OFR
61.145(c) (8);
4. Assessing against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
COUNT V
FAILURE TO FOLLOW WASTE DISPOSAL PROCEDURES
1-33. Complainant realleges and incorporates herein by
reference paragraphs 1 through 33 of Count II as paragraphs 1
through 33 of this Count V.
34. During the asbestos renovation activities on January
11, 1998, lEO failed to immediately bag the P11CM in leak-tight
containers after it was removed from the water tank.
35. lEO then wheeled the uncontained and uncovered P11CM
outside of the plant, and placed it into an ordinary refuse
-16-
dumpster/compactor for disposal as ordinary trash.
36. Section 61.150(a) of the asbestos NESHAP, 40 CFR
61.150(a), as adopted in Section 9.1(d) of the Act, titled,
Standard for waste disposal for manufacturing, fabricating,
demolition, renovation, and spraying operations, provides in
pertinent part as follows:
Each owner or operator of any source covered under the
provisions of §861.144, 61.145, 61.146, and 61.147
shall comply with the following provisions:
(a) Discharge no visible emissions to the outside air
during the collection, processing (including
incineration)
,
packaging, or transporting of any
asbestos-containing waste material generated by
the source, or use one of the emission control and
waste treatment methods specified in paragraphs
(a) (1) through (4) of this section.
(1) Adequately wet asbestos-containing waste
material as follows:
(i) Mix control device asbestos waste to
form a slurry; adequately wet other
asbestos-containing waste material; and
(ii) Discharge no visible emissions to the
outside air from collection, mixing,
wetting, and handling operations, or use
the methods specified by §61.152 to
clean emissions containing particulate
asbestos material before they escape to,
or are vented to, the outride air; and
(iii After wetting, seal all asbestos-
containing waste material in leak-tight
containers while wet; or, for materials
that will not fit into containers
without additional breaking, put
materials into leak-tight wrapping; and
(iv) Label the containers or wrapped
materials specified in paragraph
-17-
(a) (1) (iii) of this section using
warning labels specified by Occupational
Safety and Health Standards of the
Department of Labor, Occupational Safety
and Health Administration (OSHA) under
29 CFR 1910.1001(j) (2)
or
1926.58(k) (2) (iii) The labels shall be
printed in letters of sufficient size
and contrast so as to be readily visible
and legible.
(v) For asbestos-containing waste material
to be transported off the facility site,
label containers or wrapped materials
with the name of the waste generator and
the location at which the waste was
generated.
(2) Process asbestos-containing waste material
into nonfriable forms as follows:
(i) Form all asbestos-containing waste
material into nonfriable pellets or
other shapes;
(ii) Discharge no visible emissions to the
outside air from collection and
processing operations, including
incineration, or use the method
specified by Sec. 61.152 to clean
emissions containing particulate
asbestos material before they escape to,
or are vented to, the outside air.
***
(4) Use an alternative emission control and waste
treatment method that has received prior
approval by the Administrator according to
the procedure described in §61.149(c) (2).
37. From January 11, 1998, until at least January 23, 1998,
Respondent failed to wet and keep wet all P11CM, including the
P11CM that had been removed and/or stripped during its renovation
activities, until it was collected and contained in labeled leak-
-18-
tight containers. Respondent also failed to process asbestos-
containing waste material into nonfriable forms and failed to use
approved alternative emission controls and waste treatment
methods.
38. From January 11, 1998 until at least January 23, 1998,
Respondent, as an owner or operator of a source covered by the
provisions of Section 61.145 of the asbestos NESHAP, 40 OFR
61.145, Respondent failed to use one of the emission control and
waste treatment methods specified in 40 OFR 61.150(a) (1), (a) (2)
or (a) (4).
39. Respondent, by its actions as alleged herein, has
violated Section 9.1(d) (1) of the Act, 415 ILOS 5/9.1(d) (1)
(2002), and Section 61.150(a) of the asbestos NESHAP, 40 OFR
61.150(a).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent IBC on Count V:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
2. Finding that Respondent has violated Section 9.1(d) (1)
of the Act, 415 ILCS 5/9.1(d) (1) (2002), and Section 61.150(a)
of the asbestos NESHAP, 40 CFR 61.150(a);
3. Ordering Respondent to cease and desist from further
violations of Section 9.1(d) (1) of the Act, 415 ILOS 5/9.1(d) (1)
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(2002), and Section 61.150(a) of the asbestos
NESHAP, 40 CFR
61.150(a);
4. Assessing against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
COUNT VI
AIR POLLUTION
1-21. Complainant realleges and incorporates herein by
reference paragraphs 2 through 21 of Count I and paragraph 33 of
Count II as paragraphs 1 through 21 of this Count VI.
22. Section 9(a) of the Act, 415 ILOS 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;
23. Section 201.141 of the Pollution Control Board
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(‘Board”) Air Pollution Regulations, 35 Ill. Adm. Code 201.141
titled, Prohibition of Air Pollution, 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, or so as
to prevent the attainment or maintenance of any
applicable ambient air quality standard.
24. Section 3.315 of the Act, 415 ILCS 5/3.315 (2002),
defines “person” as follows:
“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.
25. Respondent IBO is a corporation, and therefore a
“person” as that term is defined in section 3.315 of the Act, 415
ILOS 5/3.315 (2002).
26. Section 3.115 of the Act, 415 ILOS 5/3.115 (2002),
defines “air pollution” as follows:
“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.
27. Section 3.165 of the Act, 415 ILOS 5/3.165 (2002),
defines “contaminant” as follows:
“CONTAMINANT”
is any solid, liquid, or gaseous matter,
any odor, or any form of energy, from whatever source.
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28. The asbestos fibers released or potentially released to
the environment by IBO are contaminants as that term is defined
in Section 3.165 of the Act, 415 ILCS 5/3.165 (2002)
29. By its improper handling of the dry and friable
asbestos-containing materials, its failure to follow appropriate
emission control and disposal procedures, and its failure to seal
the area where the asbestos removal activities were taking place,
lEO has caused, threatened, and/or allowed the release and
distribution of asbestos fibers to the IBC plant’s food
production area and to the environment.
30. IBO has caused, threatened or allowed the release of
asbestos fibers into the facility and the environment in
sufficient quantity and of such duration so as to cause or tend
to cause “air pollution” as that term is defined in Section 3.115
of the Act, 415 ILOS 5/3.115 (2002)
31. Respondent 130, by its actions as alleged herein, has
violated Section 9(a) of the Act, 415 5/9(a) (2002), and Section
201.141 of the Board’s Air Pollution Regulations, 35 Ill. Adm.
Code 201.141.
WHEREFORE, Complainant,
PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter a judgment in favor of
Complainant and against Respondent 130 on Count VI:
1. Authorizing a hearing in this matter at which time
Respondent will be required to answer the allegations herein;
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2. Finding that Respondent has violated Section 9(a) of
the Act, 415 ILOS 5/9(a) (2002), and Section 201.141 of the
Board’s Air Pollution Regulations, 35 Ill. Adm. Code 201.141;
3. Ordering Respondent to cease and desist from further
violations of Section 9(a) of the Act, 415 ILOS 5/9(a) (2002), and
Section 201.141 of the Board’s Air Pollution Regulations, 35 Ill.
Adm. Code 201.141;
4. Assessing against Respondent a civil penalty of Fifty
Thousand Dollars ($50,000.00) for each violation of the Act and
pertinent regulations, and an additional civil penalty of Ten
Thousand Dollars ($10,000.00) for each day of violation;
5. Taxing all costs in this action pursuant to Section
42(f) of the Act, including attorney, expert witness and
consultant fees, against Respondent; and
6. Granting such other relief as the Board deems
appropriate and just.
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PEOPLE OF THE STATE OF ILLINOIS,
by LISA MADIGAN
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
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(~_—~--~-~-~
R6SEMARIE OAZEAU, Chl.’et
Environmental Bureau
Assistant Attorney General
OF COUNSEL:
JOEL STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor.
Chicago, IL 60601
(312) 814-6986
H: \comrnon\Environrnental\JOEL\Case Docurnents\IHC Hostess\complaintl wpd
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CERTIFICATE OF SERVICE
I, JOEL J. STERNSTEIN, an Assistant Attorney General,
certify that on the 29th day of January, 2004, I caused to be
served by First Class Mail the foregoing Complaint to the parties
named on the attached service list, by depositing same in postage
prepaid envelopes with the United States Postal Service located
at 100 West Randolph Street, Chicago, Illinois 60601.
~e
-.
JOEL J. STERNSTEIN
