RECE~VED
CLERK’S OFFICE
MAR
082004
STATE OF ILLINOIS
Pollution
Control Board
OFFICE OF THE ATJTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATT’ORNEY GENERAL
March
5,
2004
The Honorable Dorothy Gunn
Illinois Pollution
Control Board
State of Illinois
Center
100 West Randolph
Chicago,
Illinois 60601
Re:
People v.
Blue Ridge Construction Corporation,
an Illinois Corp.
PCB
No.
02-115
Dear Clerk Gunn:
Enclosed for
filing please
find
the original
and five
copies of a
NOTICE
OF
FILING
and
COMPLAINANT’S CLOSING
BRIEF AND ARGUMENT in
regard to
the above-captioned matter.
Please file the original and return
a file-stamped copy of the document to our office
in the enclosed
self-addressed,
stamped envelope.
Thank you
for your cooperation
and
consideration.
D.
Haschemeyer
Environmental Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
DDH/pp
Enclosures
500 South Second
Street, Springfield,
Illinois
62706
•
(217) 782-1090
•
‘ITY:
(217) 785-2771
•
Fax: (217) 782-7046
100
~VestRandolph Strect, Chicago,
Illinois
60601
•
(312)
814-3000
•
‘l”l’Y: (312) 814-3374
•
Fax:
(312) 814-3806
1001
East
Main, Carbondale,
Illinois
62901
•
(618) 529-6400
•
TTY:
(618)
529-6403
•
Fax: (618) 529-6416
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~VED
PEOPLE OF THE STATE OF ILLINOIS,
)
CLERK’S OFFICE
Complainant,
)
MAR
0
32004
)
STATE OF ILLINOIS
v.
)
PCB NO. 02-F1~utionControl Board
)
(Enforcement)
BLUE RIDGE CONSTRUCTION CORPORATION,)
an Illinois
corporation,
)
)
Respondent.
NOTICE
OF FILING
To:
William
R.
Kohlhase
Miller, Hall
& Triggs
1125 Commerce Bank Building
416 Main
Street
Peoria,
IL 61602
PLEASE TAKE NOTICE that
on
this date
I
mailed for filing with the Clerk of the Pollution
Control
Board
of
the State
of
Illinois,
COMPLAINANT’S
CLOSING
BRIEF
AND
ARGUMENT,
copies of which are attached
hereto and herewith
served
upon you.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the
State
of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigatio
ision
BY:_______
500
South
Second Street
‘LBE’~T
D.
HASCHEMEYER
Springfield,
Illinois 62706
Assistant Attorney General
217/782-9031
Environmental Bureau
Dated:
March
5,
2004
CERTIFICATE OF SERVICE
I
hereby certify that
I did
on
March
5, 2004, send
by UPS Next Day Air, with
postage
thereon fully prepaid, by depositing in
a
United
States Post Office
Box a true and
correct copy
of the following instrument entitled NOTICE OF FILING
and COMPLAINANT’S CLOSING
BRIEF AND ARGUMENT
To:
William
R.
Kohlhase
Miller, Hall
& Triggs
1125 Commerce Bank
Building
416 Main
Street
Peoria,
IL 61602
and
the original and ten
copies by UPS Next Day Air
with
postage thereon fully prepaid
of the
same foregoing
instrument(s)
To:
Dorothy Gunn, Clerk
Illinois
Pollution Control
Board
State of
Illinois Center
Suite
11-500
100 West
Randolph
Chicago,
Illinois 60601
A copy was also sent
by UPS Next Day Air with
postage thereon fully
prepaid
To:
Brad
Halloran
Hearing
Officer
Pollution Control
Board
James
R. Thompson Center, Ste.
11-500
100
West Randolph
Chicago,
IL 60601
Delbert D.
Hasdiemeyer
‘~‘
Assistant Attorney General
This filing is submitted on
recycled paper.
RECEIVED
BEFORE THE ILLINOIS POLLUTION
CONTROL
BOARD CLERK’S OFFICE
MAR
082004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE OF ILLINOIS
)
Pollution Control
Board
Complainant,
v.
)
PCB
NO.
02-115
)
(Enforcement)
BLUE RIDGE CONSTRUCTION CORPORATION,)
an
Illinois corporation,
)
Respondent.
COMPLAINANT’S CLOSING
BRIEF AND ARGUMENT
Now comes the Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
ex rel.
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
by LISA MADIGAN,
Attorney General of the State
of Illinois,
and
respectfully submits the following as
Complainant’s
Brief and Closing Argument
in
the above-captioned matter.
INTRODUCTION
On
February
21, 2002,
Complainant
filed
the Complaint herein
consisting of four counts
alleging
as
follows:
COUNT
I
Count
I alleges that Respondent, “During the demolition of the former dining hall at the
Old
Bartonville Mental Health Facility, Respondent failed to utilize asbestos emission control methods
and
properly remove,
handle and dispose of
all
RACM and
regulated
asbestos-containing waste
material during the demolition activities causing, threatening or allowing the emission of asbestos
into
the environment
so as to cause air pollution in violation of Section 9(a) of the Act and Section
201 .141
of the Board’s Air Pollution
Regulations.”
1
COUNT
II
Count
II
alleges
as follows:
Paragraph
9:
Prior
to
demolition of the
old
dining
hall,
Respondent failed
to
thoroughly
inspect the facility for the presence of asbestos
in violation of 40
CFR 61.145 and
Section
9.1
of
the Act.
Paragraph
10:
Prior
to demolition,
Respondent failed
to
submit
a
written
notification
of
intention of demolition of the former dining hall in violation of 40 CRF 61 .145(b)(1) and Section
9.1
of the Act.
Paragraph
11:
During
the demolition,
Respondent failed
to
remove
all
RACM
prior
to
commencing
demolition activities
at
the
old
dining
hall
in
violation
of 40
CFR
61.145(c)(1) and
Section
9.1(d) of the Act.
Paragraph
12:
During demolition of the
dining
hall,
Respondent failed to adequately wet
and
maintain
as wet
all
RACM
and
regulated
asbestos-containing material
until
collected
and
contained
in preparation for disposal at a site permitting such waste in violation of 40 CFR 61.145
(c)(6)and Section
9.1(d) of the Act.
Paragraph
13:
During demolition of the
dining
hall,
Respondent failed
to
have on the site
at
least one
representative
trained
in
the
provisions
of
NESHAP
for
asbestos
and
compliance
methods requirements
in violation of 40
CFR 61 .145(c)(8) and
Section 9.1(d) of the Act.
Paragraph
14:
During the demolition of the dining
hall, Respondent failed to adequately wet
and
maintain as wet asbestos-containing material,
thereby
causing or allowing
the discharge
of
visible emissions to the outside air in violation of 40 CRF 61.1 50(a)(1) and Section 9.1(d) of the Act.
2
COUNT III
OPEN
DUMPING VIOLATIONS
Count
III alleges
that
“on or before May 17,
2001, Respondent caused or allowed the open
dumping of demolition debris generated by the demolition activities within the dining hall, including,
but not limited
to,
wooden
desks,
pipe,
metal
and
other debris
in or near a ravine
on
property
owned by Respondent in violation
of Sections 21(a),
(e),
(p)(1) and
(p)(7) of the Act.
COUNT IV
WATER POLLUTION
THREAT
Count
IV alleges,
“On
or about
May
17,
2001,
Respondent
caused
or allowed the open
dumping of demolition debris generated
by Respondent’s demolition activities within and adjacent
to a
ravine owned by Respondent so as to
create
a water pollution hazard
in violation of Section
12(d) of the Act.”
MOTION
FOR
PARTIAL SUMMARY JUDGMENT
On August 7, 2003, the Board granted Complainant’s Motion for Partial Summary Judgment
finding:
COUNT
I
Paragraphs 5,6,8,
9,10,
11
and
13 of the stipulation establish that
respondent from May 11, 2000 to May
17, 2000, demolished the dining hall
and
that
while
demolishing
the
dining
hall,
respondent
failed
to
utilize
asbestos
control
methods,
and
failed
to
properly
remove,
handle
and
dispose of RACM and other asbestos containing material.
Paragraphs
16,
17,
18,
and
19;
Exhibits
A,
B,
C,
D,
and
E
establish
the demolition
and
presence of asbestos in
a powder form
susceptible to becoming
air borne,
so as to
present a threat of air pollution.
Mot.
at 2-3.
The Board finds that
the
facts
are
sufficient
to
find
respondent
in
violation
of
the
Act
and
regulations.
The respondent, therefore, violated
Section 9(a) of the Act and
Section 201.141
of the Board’s Air
Pollution
regulations.
3
COUNT II
40
CFR 61.145(a)
Paragraph
5 of
the stipulation
establishes
that
on
May
11,
2000,
respondent,
as owner or operator, commenced demolition of thedining hall.
Paragraph
7 of the stipulation establishes
that respondent did
not conduct
an
inspection prior to
demolition for the presence
of asbestos.
The Board
finds that the facts
are
sufficient to
find
respondent
in
violation of 40
C.F.R.
61.145(a)
and
9.1(d).
The respondent,
therefore,
violated
40 C.F.R. 61.145(a) and
9.1(d).
40 CFR 61.145(b)(1)
Paragraph
8
of the
stipulation
provides
that
prior
to
commencing
demolition,
respondent did not submit a written notification to the Agency of
its intention to
demolish the dining
hall.
Complainant also notes, that
in its
answer to
Count
II,
respondent admitted
that
it failed
to
provide
a written
notice.
Mat.
16
6.
The
board finds
that
the facts
are
sufficient
to
find
respondent
in
violation
of
40
C.F.R.
61.145(b)(1).
The
respondent,
therefore, violated 40
C.F.R. 61.145(b)(1).
COUNT
III
Paragraph
13
of the stipulation
provides that
“during
the course of
the
renovation
of
the dining
hall,
respondent
dumped
splintered
boards,
metal wiring, insulation and other demolition debris from the collapsed roof
and bricks and mortarfrom the eastwall in or near a ravine on the property.”
Paragraph
18
of the stipulation also incorporates Agency inspector James
Jones’
observations
of
the site
on
May
17,
2000.
Paragraph
19
of the
stipulation incorporates
photographs
of the site taken
by Mr. Jones
on
May
17,
2000.
Mot.
at
7.
The
Board
finds
that the facts
are
sufficient to
find
respondent
in
violation
of
the
Act.
The
respondent,
therefore,
violated
Section 21(a),
(e),
(p)(1) and
(p)(2)
of the Act.
COUNT IV
Paragraph
13 of the stipulation describes the location of the dumping
as
“in
or near a
ravine
on the property.”
Paragraph
14
of the stipulation
states that at the bottom of the ravine is an intermittent stream.
Mr. Jones’
observations, which are included
in paragraph
18,
states:
During the investigation,
Jones observed building
demolition waste
consistent with
the make-up of the materials
in the building
on the
property.
Bricks
mixed
with
splintered
boards,
metal
wiring
insulation,
and
apparent asbestos
piping
insulation
was
observed
dumped
in
several
locations
on
the property.
The open
dumped
building demolition
waste extended
down
into
the
ravine where
a
4
small
stream
traversed
across
the
property.
This
is
significant
because it began
to
rain during the investigation,
and the potential
for
water pollution to
occur was
increased,
in
that, the
rain
could
have washed
asbestos fibers down the ravine into the stream.
The
Board
finds
that
the facts
are
sufficient
to
find
respondent
in
violation of the Act. The respondent, therefore, violated Section
12(d) of the
Act.
REMAINING ISSUES
REMAINING COUNT II VIOLATIONS
The
Motion
for
Partial
Summary
Judgment
did
not
seek
summary
judgment
for
the
violations
alleged
in
paragraphs
11,
12,
13
and
14
of
Count
II
because
as
indicated
in
Complainant’s
opening statement,
at the time of the filing of the
Motion for Summary Judgment,
Complainant was
not confident that
Complainant
could
establish
with
the certainty
required
to
support
a
motion
for
summary judgment
that the
quantity
of asbestos
present
could
meet
the
NESHAP requirement necessary to require Respondent to comply with the NESHAP requirement
alleged
to
have been
violated
in
Paragraphs
11,
12 and
13.
40
CFR 61.145(a)(1)
and (a)(2)
provides:
(1)
In a facility being
demolished, all the requirements of paragraphs
(b)
and
(c) of this section apply, except as provided
in paragraph (a)(3)
of this section,
if the combined amount of RACM is
(i)
At least 80 linear meters (260 linear feet) on pipes orat 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 length or area could not be measured previously.
(2)
In a facility
being
demolished, only
the notification
requirements of
paragraphs (b)(1),
(2),
(3)(i)
and
(iv), and
(4)(i)
through
(vii)
and
(4)(ix)
and
(xvi)
of
this
section
apply,
if
the combined
amount
of
RACM is
(i)
Less
than
80
linear
meters
(260
linear feet)
on
pipes
and
less than 15 square meters (160 square feet) on other facility
components, and
5
(ii)
Less
than
one
cubic
meter
(35
cubic
feet)
off
facility
components where the length or area could not be measured
previously or there
is no asbestos.
Thus,
to establish
violations
of 61.145(c)(1),
61.145(c)(6)
and
61.145(c)(8)
as
alleged
in
paragraphs
11,
12
and
13
of
Count
II
of
the
Complaint,
the
record
must
establish
by
a
preponderance of the evidence, that it is
more probably true than not true that there were at
least
80 linear meters (260 linearfeet) of RACM on pipes, or at least 15 square meters (160 square feet)
on
other
facility components, ~
at
least
1
cubic meter (35
cubic feet)
off of facility components
where the length or area
could
not be
measured
previously.
THE
RECORD
ESTABLISHES
BY A PREPONDERANCE
OF THE
EVIDENCE
THAT
THERE WAS AT LEAST ONE CUBIC METER (35 CUBIC FEET) OF RACM OFF OF FACILITY
COMPONENTS WHERETHE LENGTH ORAREACOULD NOT BE MEASURED PREVIOUSLY.
The condition
of the facility
precluded
measurement of
the
RACM at the
site during
Mr.
Hancock’s
inspection
of
May
17,
2000,
because
demolition
had
commenced
and,
in
fact,
as
indicated by Mr.
Palmer, demolition debris had
been pushed adjacent to and into the ravine in the
back of the property (p.
2,
Mr.
Hancock’s inspection memo;
Stip.,
Exh. A).
Further,
as
testified
to
by
Mr.
Hancock,
at
the
time
of
his
May
17,
2000,
visit,
it
was
impossible
to
measure the pipe containing insulation because a
portion of it had
been deposited
in the ravine and the material in the ravine was too unstable to walk on. (pp. 2-3 trans.)
In addition,
as
noted by
Mr.
Hancock and
Mr. Palmer,
a portion of the roof has
collapsed.
Consequently,
it is
clear that at least as of the date of inspection by
Mr.
Hancock on May 17, 2000, the length or area
could not be measured.
Mr. Hancock did, based on the engineering drawing of the building, testify
that,
in
his opinion, there was
160
feet of pipe which contained asbestos insulation
in the facility.
(p.
27 trans.)
Since
160 linear feet of pipe
does not meet threshold amount of 260
linear feet of
RACM so
as
to
provide for
the
application
of
Section
61.145(c),
the question
then
becomes
whether there was at least I
cubic meter of facility components.
6
The
only
evidence
in
the record
addressing
that
issue
is
Exhibit
2,
the
Notification
of
Demolition
and
Renovation
filed
by
Respondent’s
asbestos
contractor,
Sentry,
a
division
of
Williams Power Corp.
That notification states that there was 1,000 cubic feet of RACM at the site.
Mr.
Hancock testified that
1,000 cubic feet equals well in excess of
1
cubic meter.
In fact, anyone
can
conclude,
based on Exhibit 2, that there was well in excess of
1
cubic meter of RACM, simply
by dividing
1,000 by 35, which equals 28+ cubic meters.
Thus,
it is clear that 61.145(c) applies.
Since Respondent in his Answer responded to
paragraphs 11, 12,13 and
14
of Count
II of
the Complaint filed herein
as follows:
11.
It
admits
that
it
failed
to
remove
all
RACM
before
it
commenced
its activities, but otherwise denies the allegations of paragraph
11.
12.
It admits that during its
activities
in the dining
hall it failed to
wet and maintain as wet all RACM and regulated asbestos-containing waste
material,
but otherwise
denies the allegations
of paragraph
12.
I 3.
It admits that during
its
activities
in the dining
hall
it did
not
have
a
representative
trained
in
the
provisions
of
the
NESHAP,
but
otherwise denies the allegations of paragraph
13.
14.
It admits that during its activities
in the dining
hall,
it failed to
wet,
and
maintain
as
wet,
asbestos-containing
material,
but
otherwise
denies the allegations
of paragraph
14.
Further,
paragraphs 9,
11
and
12
of the Stipulation
provide as follows:
9.
Prior
to
commencing
demolition
of
the dining
hall
at
the
facility, Respondent
did not remove any regulated
ACM.
***
11.
During
the demolition of the
dining
hall
at
the facility up
to
May
17,
2000,
the
date
of
an
inspection
by
Dennis
Hancock,
an
IEPA
inspector,
Respondent did
not wet, or maintain as wet,
regulated ACM.
12.
During
the
demolition of the dining
hall
at the facility up
to
May
17,
2000,
the
date
of
an
inspection
by
Dennis
Hancock,
an
IEPA
inspector, Respondent did not have on site any representative trained in the
provisions of the National Emission Standards for Hazardous Air Pollutants
(NESHAP) for asbestos.
7
Consequently, since
Exhibit 2 establishes there was
in excess of I
cubic meter of RACM
at the
site,
it
is clear Respondent violated the following:
40
CFR 61 .145(c)(1) and
Section 9.1(d)
of the Act by failing to
remove
all
RACM prior to commencing demolition activities as alleged in paragraph
11
of Count
II
of the Complaint;
40 CFR 61 .145(c)(6) and
Section 9.1(a) of the Act
by failing to adequately
wet and
maintain
as
wet
all
RACM
and
regulated
asbestos
containing
material
until
collected
and
contained
in
preparation for disposal
at
a
site
permitted to accept such waste as alleged in
paragraph 12 of Count
II of the
Complaint; and
40 CFR 61 .145(c)(8)
and Section
9.1(d) of the Act by failing to have on site
during
demolition
activities one
representative trained
in
the provisions
of
the
NESHAP for
asbestos
as
alleged
in
paragraph
13
of Count
II
of the
Complaint.
40 CFR 61.150(a)(l)and
Section 9.1(d) of the Act by failing
to adequately
wet and
maintain
as
wet
asbestos-containing
material
during
collection
thereby discharging visible emissions.
SECTION
33(c) FACTORS
Section
33(c)
of the Act, 415 ILCS 5/33(c) (2000),
provides,
in relevant part:
(c)
In
making
its
orders and
determinations,
the Board
shall take into
consideration
all
the
facts
and
circumstances
bearing
upon
the
reasonableness of the emissions,
discharges
or deposits
involved
including, but not limited to:
(i)
the character and degree of injury to, or interference with the
protection
of
the
health,
general
welfare
and
physical
property
of the people;
(ii)
the social
and economic value of the pollution source;
(iii)
the suitability
or
unsuitability
of the
pollution
source
to
the
area in which it is located, including the question of priority of
location
in the area involved;
(iv)
the technical practicability and
economic reasonableness of
reducing or eliminating the emissions, discharges ordeposits
resulting
from such
pollution source;
and
(v)
any subsequent compliance.
8
SECTION 33(c)(i):
the character and degree of injury to,
or
interference with the protection of
the health, general welfare and physical
property of people;
The instant case presents a two-prongthreat to the public health, a potential endangerment
to
the public
health posed by
the threat of air pollution from contaminants from the
site,
including
asbestos and the threat of water pollution arising from the dumping ofdernoHtion-debris, including
asbestos
piping in
the ravine.
SECTION 33(c)(ii):
the social
and
economic value of the pollution source;
The
record
indicates
the
building
being
demolished
was
old,
abandoned
and
partially
collapsed.
Thus,
the
site
at
the time of the
demolition,
aside from
the
value of the
underlying
property,
would
have
had
very
little
value.
Although
undefined,
it
is assumed
that
upon
the
completion
of a metal fabrication shop
on
the
site,
if ever completed,
the site would
have some
social and
economic value.
SECTION 33(c)(iii):
the suitability or unsuitability of the pollution source to the area
in which it
is
located,
including the question of priority
of location
in the area involved;
The record indicates the site was part of an
old State mental
institution.
Thus,
it was a pre-
existing site and
the question of suitability or unsuitability of the site is
moot.
SECTION
33(c)(iv):
the
technical
practicability
and
economic
reasonableness
of
reducing
or
eliminating the emissions, discharges or deposits resulting frm the pollution
source;
It is clear that
it was technically practical and economically reasonable to comply with
the
applicable
requirements,
thereby
reducing
or completely
eliminating
the threat of emissions
or
discharges of asbestos and
other pollutants from the site.
9
SECTION 33(c)(v):
any
subsequent compliance.
Following
notice,
Respondent implemented
measures
to
properly
contain,
remove
and
dispose of all
regulated asbestos-containing waste and
refuse.
SECTION 42(h)
FACTORS
Section
42(h)
of
the
Illinois
Environmental
Protection
Act,
415
ILCS
5/42(h)
(2000),
provides,
in
relevant part,
as follows:
(h)
In
determining
the
appropriate civil
penalty
to
be
imposed
under
subdivisions
(a),
(b)(1),
(b)(2),
(b)(3)
or (b)(5)
of this
Section,
the
Board
is authorized
to
consider any
matters of record
in mitigation
or aggravation of
pehalty,
including
but not limited to
the following
factors:
(1)
the duration and gravity
of the violation;
(2)
the presence or absence of due diligence on the part of the
violator in attempting
to comply with requirements of this Act
and
regulations thereunder or to secure
relief therefrom as
provided
by this Act;
(3)
any economic benefits accrued
by the respondent
because
of delay
in compliance with
requirements;
(4)
the
amount
of
monetary
penalty which will
serve
to
deter
further
violations
by
the
violator
and
to
otherwise
aid
in
enhancing
voluntary compliance with this Act by the violator
and
other persons similarly subject
to the Act;
(5)
the
number,
proximity
in
time,
and
gravity
of
previously
adjudicated violations
of this Act by the respondent;
Applying
the Section
42(h)
factors
to
the
present
case,
Complainant
initially
notes
that
subsection
(5) is not applicable to the present case.
The record does
not indicate there are
any
prior adjudicated violations
against the Respondent.
SECTION 42(h)(1):
the duration and
gravity of the violations;
10
The record
establishes that Respondent commenced demolition of the dining hall on May
11, 2000, and
the demolition continued
until
it was halted in
response to
a request by
an Agency
inspector, Dennis Hancock on May 17, 2000.
(Stip., para.
6,
Exh. G)
Thus,
it appears the following
violations occurred during
the period
May
11,
2000,
to April
16,
2001..
Count
I:
Violation
of
Section
9(a)
of
the
Act,
causing
or threatening
air
pollution
continuing until the date of cleanup, 340
days.
Violation of 35
III.
Adm.
Code 201.141, causing or threatening
the release
of
a
contaminant
into
the
environment
so
as
to
cause
or threaten
air
pollution, continuing 340 days.
Count
II:
Violation
of 40 CFR 61.145(a)
and
9.1(d)
of the Act,
failure to
inspect for
RACM prior to
commencing
demolition.
Violation of 40 CFR 61.145(b) and
9.1(d) of the Act, failure to submit written
notification
prior to commencing
demolition.
Violation of 40 CFR 61.145(c)(1) and
9.1(d) of the Act, failure to remove
all
RACM prior to commencing
demolition.
Violation
of 40 CFR 61.145(c)(6) and 9.1(d) of the Act, failure to adequately
wet all RACM and regulated asbestos-containing material during demolition
continuing
until
the date
of the cleanup, 340
days.
Violation of 40 CFR 61 .145(c)(8)
and 9.1(d) of the Act, failure to have on site
during
demolition a
trained representative,
continuing
until
the date
of the
cleanup, 340
days.
Violation of 40 CFR 61.150(a)(1) and
9.1(d) of the Act, commencing on or
bout
May 11,2000, and
continuing through at least
May 17, 2000.
The record establishes, commencing on or about May 11,
Respondent caused or allowed
the open dumping of demolition debris in or adjacent to a ravine adjacent to the dining hall, and that
waste remained
in or adjacent to that ravine until on or about April
16, 2001.
Thus,
it appears the
following violations occurred
during the period
May
11, 2000,
to April
16,
2001.
11
Count Ill:
Violations
of
Section
21(a)
of
the
Act,
open dumping
continuing
until
the
date of the cleanup,
340 days.
Violation
of Section
21(e)
of the Act, dispose,
.
.
.
store,
abandon waste
except at
a facility which meets requirements of the Act continuing until the
date of the cleanup,
340 days.
Violation
of Section
21 (p)(1) of the Act, litter continuing
until the date of the
cleanup,
340 days.
Violation
of
Section
21(p)(7)
of
the
Act,
deposition
of
demolition
waste
continuing
until
the date of the cleanup, 340
days.
Count
IV:
Violation
of Section
12(d)
of the
Act, open dumping
of demolition
debris
within
and
adjacent
to
a
ravine
so
as
to
create
a water
pollution
hazard
continuing until the date of the cleanup,
340 days.
Assuming
Complainant
has
counted
correctly,
the
record
establishes
Respondent
committed the following:
Violation of 3 separate
NESHAP
requirements;
Violation of 2 separate NESHAP requirements continuing for 7 days each;
Violation
of
1
separate
NESHAP requirement continuing for 7 days;
Violation
of Section 9
and
9.1
of the Act for
340 days
each;
Violation
of the Board’s Air Pollution
Regulations continuing for 340
days;
Violation of 4 requirements
of Section 21
of the Act continuing for 340 days
each;
and
Violation
of Section
12(d) of the Act
continuing for 340
days.
Thus,
there
are
a
total
of
14
separate
violations
continuing
for
a total
of
3,110
days.
Accordingly, pursuant
to
Section 42(a) which provides for a maximum penalty of $50,000.00 per
violation and $10,000.00 for each day the penalty continues, it appears the maximum penalty which
could
be
imposed
in the present case
is as follows:
12
Separate violations,
13
x 50,000
=
$
700,000.00
Days the violation continued,
3,156
x 10,000
=
$30,156,000.00
Total penalty
-
$30,850,000.00
If each
day for some of the violations
is considered a separate violation,
the total penalty would be
even higher.
Complainant, of course, is not seeking a penalty anywhere near the maximum exposure in
the instant case;
nonetheless,
Complainant believes the calculation of the maximum penalty
as
provided for by the Illinois
Environmental Protection Act is a
useful exercise as a
measure of the
duration
and gravity
of the violations.
Further,
Complaint
believes
it is important to note that the
primary pollutant of concern in the instant case is asbestos, a pollutant which,
by definition
under
the terms
of the
Federal
Clean Air Act, is defined as
a “hazardous”
pollutant.
Consequently,
it is
clear the violations were serious and
some continued for a lengthy time frame.
SECTION
42(h)(2):
the
presence
or absence
of
due
diligence
on
the
part of
the
violator
in
attempting
to
comply
with
requirements
of
this
Act
and
regulations
thereunder or to
secure relief therefrom as
provided
by the Act;
In
order
to
determine
the
presence
or
absence
of
due
diligence
on
the
part
of
the
Respondent,
it appears
useful
to
divide
the time frames present
in
the
instant
case to
the time
before May 17,
2000,
and
the time after.
Before May
17, 2000:
It is clear that before May 17,
2000, there was
a complete absence of due diligence on the
part of the Respondent.
This absence of due diligence
is particularly disturbing
because this is a
Respondent who,
if it did
not know there were requirements
applicable to asbestos,
should
have
known.
After all,
this Respondent
is not some
“John
Doe” off the street.
This Respondent is a
construction company.
While the record does not describe the type of construction company Blue
13
Ridge Construction Company
is,
it is, nonetheless, clear that
it
is a construction company from
its
name,
the
activities
described
in
the
inspection
reports,
and
the
equipment
depicted
in
the
photographs
(see,
Stip.,
Exhs. A and
B).
Further, it is clear that Mr. Palmer inspected the building
prior to the commencement of the demolition (Trans. pp 62-63) and was well aware of the condition
of the building, and the location and
condition of the pipes
in the building.
Respondent will likely argue that due
diligence was shown
by its
inquiry to the Village
of
Bartonville, and the fact that the Mayor, the Building Commissioner, and the Village Clerk indicated
no
permits were
required.
Respondent’s
attempt to
hide
behind
the Village officials
should
be
summarily ignored.
It is not theVillage’s officials’ responsibility to advise Respondent of State and
Federal
environmental
requirements.
It
is
not
the
Village
officials
doing
the
demolition.
Respondent cannot avoid its responsibility and guilt by pointing the finger at some third party and
saying,
“they made
me do it.”
The simple
truth
is
it
is Respondent’s
obligation
to exercise
due
diligence and,
prior to May 17,
2000, it simply did
not.
The picture with regard to whether Respondentexercised due diligence
after May17, 2000,
is
less clear.
While
it
is
correct,
following
May
17,
2000,
Respondent did
retain
the necessary
expertise and, ultimately, the site was clean in accordance with applicable requirements.
It is
also
clear
that
after
May
17,
2000,
Respondent
had
little
choice
but
to
comply
with
the applicable
requirements.
Failure to
comply with the applicable requirements after May 17,2000, would
have
exposed
Respondent to
very serious
sanctions,
including
possible
criminal penalties.
Further,
it
is
clear
that
it
took
too
long for
the
site
to
be
cleaned
up
in
compliance
with
the
applicable
standards, just a few days short of a year.
While it may be that a part of the delay may
have been
due to actions
or inactions on the part of the Agency, the ultimate
responsibility for the violations
and the fact that the asbestos-containing demolition waste laid exposed in that ravinefor 340 days,
or almost a full year,
rests with the Respondent,
340 days cannot be described as “due diligence.”
14
SECTION
43(h)(3):
any
economic
benefits
accrued
by
the
violator
because
of
delay
in
compliance with
requirements;
The record
in the instant case does not define,
in any precise terms, any economic benefit
accrued
by the Respondent because of the delay in compliance.
What the record does define
is
the total cost of compliance, $59,965.67,
and the breakdown of the total as follows:
$10,265.31
to
Clark Engineers;
$14,220.00 to
N.
E.
Finch
(trucking and excavating);
$15,446.00 to Sentry Asbestos;
$1,055.00
to
Bodine Environmental;
and
$18,979.00 to
Tazewell
County Landfill.
(Stip.,
para. 29,
Exh.
M)
Further,
the
record
establishes
that
the
Village
of
Bartonville
reimbursed
Respondent
$56,000.00
for
expenses
associated
with
the
cleanup,
except
for
expenses
directly
related
to
asbestos on the pipes (Stip. para.
30), although the minutes of the Village meeting authorizing the
payment indicated
a payment of $59,965.67 was approved
by the Village.
(Stip.,
Exh.
M)
Either
way,
it is clear that the Respondent was able to shift most of, if not
all of, the financial burden for
Respondent’s non-compliance with
the law to the Village.
Thus, it appears that Respondent has
managed
to escape relatively
unscathed
as
a result of its
noncompliance.
While
it may be true
there was some debris in the ravine prior to
Respondent’s demolition of the facility,
it is also clear
that
the
cost
of
cleaning
up
the
pre-existing
debris
was
rendered
much
more
expensive
by
Respondent’s
co-mingling of the asbestos waste.
Further, it is clear that Respondent’s demolition
activities were responsible for co-mingling the asbestos waste with the demolition waste generated
bythe demolition of the building.
Itwas not the Village’s actions which contaminated the demolition
debris,
it was the Respondent.
Itwas not the Village’s actions which resulted in the cleanup, it was
the Respondent’s.
This is simply inconsistent with one of the basic principles of the Act.
Section
2(b) of the Act provides:
15
(b)
It
is the purpose of this Act,
as
more
specifically described
in
later
sections, to establish a unified, state-wide programsupplemented by
private remedies, to restore, protect and
enhance the quality of the
environment,
and
to
assure
that
adverse
effects
upon
the
environment
are fully
considered and
borne by those
who
cause
them.
In the instant case,
it
is the Respondent who created the damage to the environment.
It is
the Respondent who should
pay for correcting the damage.
Respondent should
not be rewarded
for shifting
the cost to
the Village.
SECTION
42(h)(4):
the amount of monetary
penalty which will serve to
deter further violations
by the respondent and to otherwise aid
in enhancing voluntary compliance
with this
Act by
the respondent and
other persons
similarly subject
to
the
Act;
Complainant
believes,
based
on
the
facts
in
this
case,
that
a
substantial
penalty
is
necessary to deterfuture violations by the Respondent and to otherwise aid
in enhancing voluntary
compliance with the Act
by the Respondent and other
persons similarly situated.
SUMMARY
For the foregoing
reasons,
Complainant requests the Board impose a minimum penalty of
$70,000.00:
$56,000.00 to assure that the cost of compliance Respondent shifted to the Village
does
not,
in
fact,
end
up
a
financial
windfall
for
the
Respondent;
and
$16,000.00
because
Respondent is guilty
of
a large
number of violations,
some
of which continued
for a
long
time,
Respondent, a construction company, failed
to exercise due diligence and
because
Complainant
believes
a minimum of $16,000.00,
in addition
to the $56,000.00,
is necessary to deter further
16
violations by Respondent and other persons similarly subject to the Act,
all as more completely set
forth
in the foregoing
discussion
of the Section 42(h) factors.
Respectfully submitted,
PEOPLE OF THE
STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney General
of the State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
_____________________
DELBERT D.
HASCHEMEYE
Environmental
Bureau
Assistant Attorney General
500
South Second Street
Springfield,
Illinois
62706
217/782-9031
Dated:
______________
17
