LERK S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR
3132004
STATE OF ILLINOIS
POll~ti~~
Control Board
PEOPLE OF THE
STATE OF ILLINOIS,
)
)
Complainant,
)
)
vs.
)
PCB NO. 02-115
)
(Enforcement
—
Air, Water)
BLUE RIDGE CONSTRUCTION CORPORATION,
)
An Illinois corporation,
)
)
Respondent.
)
NOTICE
OF FILING
TO:
Mr. Delbert D. Haschemeyer
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
PLEASE TAKE NOTICE
that on March 29,
2004 I mailed for filing with the Clerk of
the Pollution
Control Board of the
State of Illinois,
Respondent’s Post-Hearing
Brief, a copy of
which is herewith served upon you.
Respectfully submitted,
Blue Ridge Construction Corporation, Respondent
BY:___
William R. Kohlhase
for Miller, Hall & Triggs, Its Attorneys
William R. Kohlhase
Miller, Hall & Triggs
416 Main Street
—
Suite 1125
Peoria, Illinois
61602
Telephone:
(309) 671-9600
CERTIFICATE OF SERVICE
I
hereby certify
that
I did
on
March
29,
2004
send by
first-class
mail,
with
postage
thereon fully prepaid, by depositing in a United States Post Office box true and correct copies of
the foregoing instrument entitled Notice
ofFiling
to:
Ms. Dorothy Guim,
Clerk
Illinois Pollution Control Board
State ofIllinois Center
100 West Randolph
—
Suite 11-500
Chicago, Illinois
60601
Mr. Delbert D. Haschemeyer
Assistant Attorney General
500 South
Second Street
Springfield, Illinois 62706
Mr. Brad Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph
—
Suite 11-500
Chicago, Illinois 60601
William R. Kohlhase,
for Miller, Hall & Triggs
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARJ~AR
302004
PEOPLE OF THE STATE OF ILLINOIS,
)
STATE
OF ILLINOIS
)
Pollution Control Board
Complainant,
)
)
vs.
)
PCB NO. 02-115
)
(Enforcement
—
Air, Water)
BLUE RIDGE
CONSTRUCTION CORPORATION,
)
An Illinois corporation,
)
)
Respondent.
)
RESPONDENT’S POST-HEARING BRIEF
This action arose out ofdemolition activities occurring at a part ofthe mental health facility
formerly operated by the
State
of Illinois
in Bartonville, Illinois,
known as the Dining Hall.
The
Complaint
alleged
an
air
pollution
violation
(Count
1),
violations
of the regulations
under
the
National Emission Standards for Hazardous Air Pollutants (“NESHAP”)
(Count II), open dumping
violations
(Count III), and a water pollution threat (Count
IV).
Complainant and respondent, Blue
Ridge
Construction
Corporation (“Blue Ridge”), entered into a comprehensive stipulation of facts
(“Stipulation”)
concerning the
matters which
were the subject of the
Complaint.
Based
on that
Stipulation, the complainant moved for partial summaryjudgment on the issue of whether all the
alleged violations,
except
certain NESHAP violations,
had occurred.
Blue Ridge did not
oppose
the complainant’s motion for partial summary judgment.
The Board granted complainant’s motion
and directed that the parties proceed to hearing on the penalty issue.
Certain
of the
NESHAP violations
alleged
in
Count II were
dependent
upon
proof that
minimum
or
threshold
quantities
of
regulated
asbestos-containing
material
(“RACM”)
were
present at the Dining Hall site.
Specifically,
complainant did not move for summary judgment on
the
issues
raised
in
paragraphs
11
through
14
of
Count
II
because
there
was
insufficient
documentation to
support
a motion for summary judgment
on
the issue ofwhether the threshold
amounts of RACM were present at the Dining Hall site.
(Tr.
At 8-9)
*
At the hearing, the parties
presented evidence on the issue ofwhether the threshold amount ofRACM was present at the site.
With
respect
to
the
factors
to
be
considered
under
Sections
33(c)
and
42(h)
of the
Illinois
Environmental Protection Act,
415
ILCS
5
(“Act”), the parties relied
upon the Stipulation which
was admitted into evidence at the hearing as complainant’s Exhibit 3.
The evidence introduced
at the hearing failed to
show that the quantity ofRACM
required
as
a predicate for establishing the unresolved NESHAP violations was present.
Accordingly, the
Board
should
find
those
violations
unproved.
With
respect
to
the
penalty,
if
any,
which
is
appropriate, the facts set forth in the
Stipulation show
that there
is no justification
for the penalty
being sought by the complainant
in Complainant’s Closing Brief and Argument (“Closing Brief’).
Also, while the Complaint requested attorneys’ fees
and
costs
under
Section 42(f)
of the
Act,
no
argument was made in the Closing Brief that attorneys’ fees or costs should be awarded.
Any such
claim should now be deemed waived.
In any event, there is no basis for an award offees or costs
under
Section
42(f)
of the
Act
because
the
violations
at
issue
were
not
willful,
knowing,
or
repeated.
I.
COMPLAINANT
FAILED
TO
PROVE
THE
THRESHOLD
QUANTITIES
OF
RACM WERE PRESENT AT THE
SITE
Paragraphs
11
through
14
of Count
II
of the
Complaint
alleged
violations
of Section
9. 1(d)(1) ofthe Act which specifies that any violation of the NESHAP regulations is a violation of
the
Act.
The NESHAP regulations
at issue,
other than those requiring notification,
depend upon
the existence ofcertain minimum quantities of RACM.
In order for those requirements to
apply to
a facility being demolished, the amount ofRACM must be either
*
“Tr.” refers to the transcript of the hearingheld in
this
matter on February 3, 2004.
2
“(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 length or area could not be measured previously.”
40 C.F.R.
§61.145(a)(1).
As
this
is
an
enforcement action,
the complainant
bears
the burden
of persuasion
on
the
essential
elements of the offense charged.
Processing and Books, Inc.
v. Pollution Control Board,
64 Ill.
2d
68,
351
N.E.2d
865,
869
(1976).
Thus,
the complainant had the obligation to
establish,
by a preponderance ofthe evidence, that the threshold quantities of RACM existed.
E.g.,
Village
ofSouth Elgin
v.
Waste Management ofIllinois, Inc.
(Feb. 20, 2003), PCB 03-106.
The Illinois
Environmental
Protection Agency (“Agency”)
on whose behalf the Complaint
was
brought,
did
not
perform
any
measurements
or tests
to
determine the
quantity
of RACM
present at the Dining
Hall
site.
The only RACM at the
site was associated
with pipe insulation.
(Tr.
pp. 38-39;
R.
Exs.
1
and 3)
Test results
showed that the only
RACM present was inside the
Dining Hall
itself.
(Tr.
pp.
41-43;
R.
Exs.
3
and
5)
No
tests
showed RACM
outside the Dining
Hall.
(Id.)
The Agency’s representative, Dennis Hancock, estimated after the fact that there were
160
feet of pipeS in the Dining Hall.
(Tr. pp.
27,
5
1-53)
Mr. Hancock testified that he saw a pipe in the
ravine adjacent to
the Dining Hall, but
did not measure it.
(Tr.
p.
53)
In the absence of its
own
measurements taken at the time of its
inspections, the Agency relies on
a
10-day notice
that was
submitted in connection with the remediation of the property on which
a contractor had indicated
that there were
1000
cubic feet ofRACM.
(C.
Ex. 2)
Mr. Hancock, the Agency’s sole witness
at
the hearing, however,
acknowledged that he was not involved in
connection with
the preparation
3
of the
10-day
notice
and
did
not
know what
the contractor who
filled
out the
form was thinking
when completing the form.
The record is bare of any tests
showing RACM
at the site in
quantities anything remotely
like
1000 cubic feet.
Debris and waste
were removed from
the area near the ravine outside the
Dining Hall.
The
10-day
report
appears to
correspond to
the removal
of that
waste
and
debris.
There are, however, no tests showing the extent ofRACM in that waste
and debris.
The only tests
of material outside the Dining
Hall showed no RACM.
(R.
Ex.
3)
Moreover,
the testimony of
Blue Ridge’s
witness, John Palmer, established that the Dining Hall was
an
old building that had
been open
for many years
and
subject to
vandalism
and
removal
of materials.
(Tr.
p.
70)
Mr.
Palmer’s testimony established that the length ofpipe that Dennis Hancock had estimated based on
his
after
the
fact
assessment,
was
not
present
in
the
building
at
the
time
Blue
Ridge
began
demolition.
(Tr. p. 71)
Complainant
had
the
burden
of proof
and
persuasion
on
the
quantity
issue.
While
it
attempted to meet its burdens with after the fact assessments by Mr. Hancock, the largest quantity
he
could
testify
to
was
160
feet of pipe with
insulation
constituting RACM.
While
even that
amount
is
disputed, it falls short of the amount
required under the NESHAP
regulations
for the
violations
alleged
in
paragraphs
11
through
14
of Count
II.
In view
of the
fact that
the
only
evidence in the record oftests ofmaterial outside the Dining Hall showed that there was no RACM
present
in
the ravine,
a
10-day
notice
containing
an
unexplained estimate which
is
inconsistent
with all other facts cannot reasonably be said to
establish by a preponderance of the evidence that
the threshold quantities of RACM were present.
The Board should find in favor ofBlue Ridge on
this issue.
4
II.
THERE
IS
NO
JUSTIFICATION
IN
THE
RECORD
FOR
THE
PENALTY
SOUGHT BY THE COMPLAINANT.
Other than the issue of the presence ofthreshold quantities of RACM under the NESHAP
regulations, respondent has never contested the factual basis for the violations already found by the
Board in granting complainant’s partial summaryjudgment motion.
In fact, respondent, consistent
with its cooperation with the Agency since it first received notice of the alleged violations, worked
with
complainant
to
prepare
the
Stipulation
which
expedited
resolution
of the
issue
of the
existence of violations.
Since Blue Ridge violated the Act,
the Board may impose a civil penalty.
(Act.
§33(b))
Even though there are violations,
however,
a civil penalty is not required under the
Act.
Southern
Illinois
Asphalt
Company,
Inc.
v.
Pollution
Control
Board,
60
Ill.
2d
204,
326
N.E.2d 406, 408
(1975).
Whether
the
Board
should
impose
a
penalty
and
the
amount
of that
penalty
must
be
determined based on the application ofthe factors set forth in Sections 3 3(c) and 42(h) of the Act.
Complainant discusses the Section 33(c) factors at pages 9
and
10 ofits Closing Brief.
Blue Ridge
does not
take issue with complainant’s discussion of those factors.
It should be noted with respect
to
Section
33(c)(i)
that
there is
no
evidence of actual air or
water pollution.
Additionally,
it
is
important to
note that, as stated by complainant
with respect
to
Section
33(c)(v),
once respondent
was
notified of the problem, it
“.
.
.
implemented
measures
to
properly
contain,
remove and
dispose of all regulated asbestos-containing waste and
refuse.”
(Closing Brief
p.
10)
There is no
issue as to
whetherrespondent is currently in
compliance.
Complainant’s analysis of the
Section 42(h) factors, however,
is
seriously flawed.
All of
the evidence concerning
the Section 42(h) factors is
found in the Stipulation.
The old Bartonville
Mental
Health
Facility,
of which
the
Dining
Hall
was
a
part,
was
located
in
the
Village
of
Bartonville.
(Stipulation, ¶2)
Prior to
commencing demolition, the principals ofBlue Ridge went
5
to the Village of Bartonville offices and
consulted with Village
officials
concerning the need for
permits
for the work which they planned to
do which
involved converting the Dining Hall into a
metal fabrication shop.
(Stipulation, ¶1J2,
4)
The owners were
advised by the Village Mayor, the
Village Building Commissioner, and the Village Clerk that no permits were required.
(Stipulation,
¶4)
Blue Ridge commenced the demolition ofthe Dining
Hall on May 11, 2000.
At that time,
others had already dumped waste at the Dining Hall site.
(Stipulation, ¶13)
Between May 11
and
May
17,
2000,
respondent was
not
in
compliance
with
certain provisions
of the
Act.
Once,
however,
Mr.
Hancock
arrived
at
the
Dining
Hall
site
on
May
17,
2000,
respondent
was
cooperative
and voluntarily complied
with
Mr.
Hancock’s
directions
and
requests.
(Stipulation,
Ex.
A, p.
2)
Respondent’s
efforts are detailed in chronologies ofactivities made Exhibits G and L
to the Stipulation.
Those exhibits clearly demonstrate that once respondent was notified that it was
not proceeding in a manner consistent with the Act,
it at all
times diligently followed the direction
of
its
consultants
and
the Agency.
Exhibit
L
shows
persistence
on
the
part
of respondent
in
pursuing compliance with the Act and that any delays arose
from communications with and among
its consultants
and the Agency and waiting on
the Agency for approvals.
The design and approval
process took until December of2000.
As a result, the remediation project could not be completed
until the spring of 2001.
The remediation project was completed by April
19,
2001.
(Stipulation,
¶27)
The Dining Hall property was purchased from the Village ofBartonville.
(Stipulation, Ex.
G,
p.
1)
Since at the time the Dining Hall property was acquired there was already open
dumping
on theproperty and respondent had proceeded with its activities
without any permit pursuant to
the
advice and direction ofthe Village ofBartonville, the Village voluntarily determined to
reimburse
6
respondent
for
remediation
costs
except
those
expenses
directly related
to
asbestos
on
pipes.
(Stipulation, ¶1J29,
30)
Neither the Stipulation
nor any
other
evidence
shows
any
knowledge on
the part of the
respondent that
asbestos was present at the Dining Hall facility or that
any permits
were required
for
its
activities.
Neither
the
Stipulation
nor
any
other
evidence
shows
that
respondent
had
previously been
involved
in
any
demolition
activities
or had
any
knowledge of the
NESHAIP
regulations.
Neither
the
Stipulation
nor
any
other
evidence
shows
any
adjudicated
or
unadjudicated prior or subsequent violations ofthe Act by the respondent.
The first Section 42(h) factor which the Board is to
consider in determining an
appropriate
civil
penalty is
the duration and
gravity of the violation.
Complainant
asserts that the theoretical
maximum penalty provides a measure ofthe duration and gravity of the violations.
(Closing Brief,
p.
13)
By complainant’s reckoning, the total possible penalty is
$30,850,000.00.
Most ofthat sum
is
generated by
complainant’s
assertion that
violations
continued
for a
cumulative total of 3,156
days which in turn was based
on the contention the number of violations
continued for 340 days.
The Stipulation,
however,
does not
establish that any or all of those violations
continued
for 340
days.
The fact that the final remediation was not complete until April
19, 2001
does not mean that
all ofthe violations continued up to that point.
Moreover, to the extent that there might have been
violations
continuing
beyond
May
17,
2000,
respondent
was
diligently
working
with
its
consultants and the Agency to resolve the situation.
It did not control when the consultants and the
Agency would perform their responsibilities.
Thus,
while respondent does not
seek
to
minimize
any violation ofthe Act,
complainant’s assessment ofthe first Section 42(h) factor unfairly inflates
the duration, and therefore the gravity, ofthe violations.
7
The
second Section 42(h) factor is the violator’s due diligence in attempting to comply with
the Act.
Complainant
asserts
a
complete absence of due
diligence on respondent’s
part prior to
May 17,
2000.
Complainant says this is disturbing because respondent is a construction company.
The record does not establish,
however, the nature ofrespondent’s
business.
The record does not
show any prior involvement by respondent in demolition activities orworking with asbestos.
Respondent checked with the local
municipality havingjurisdiction over the Dining Hall to
determine what permits were required.
That was customary and reasonable.
It is
undisputed that
respondent was advised that no
permits were required.
The fact that neither the municipality nor
respondent knew that there were additional
requirements in connection with demolition resulted in
the
violations.
Respondent,
however,
clearly made
an
effort
to
meet
legal
requirements.
After
being given notice ofthe violations, respondent clearly was diligent.
Complainant
says that respondent had little choice but to comply and that it took too
long
for the
site
to
be
cleaned
up.
First,
respondent’s
diligence after notice of the violation
is
clearly
relevant.
Complainant
cites no
authority for the proposition that the only due
diligence looked at
under Section 42(h)(2) is
due
diligence prior to
notice of a violation.
Further, there is
nothing in
the record that supports that
“it took too
long” for the site to
be cleaned up.
Respondent’s detailed
chronology shows
that
it was not
delaying the process.
The record
does not
show
how
long
a
typical clean up
under such circumstances takes.
Complainant says that if it delayed
the clean up,
that
should
be
respondent’s
responsibility.
It
would
be
inequitable
and
illogical,
however,
to
punish respondent for delays over which it had no control.
The
third
Section
42(h)
factor
is
whether any
economic benefits
accrued
to
respondent
because
of
delay
in
compliance
with
the
Act.
Complainant
essentially
acknowledges
that
respondent did not receive any economic benefit due to
any delay in compliance.
That should end
8
any analysis ofthis factor.
Complainant goes on,
however, to argue that the fact that the Village of
Bartonville
chose
to
reimburse
respondent
for
certain
expenses
related
to
the
remediation
somehow shows
an economic benefit to respondent that is to
be considered under Section 42(h)(3).
Any reimbursement from the Village ofBartonville, however, was not economic benefit “because
ofdelay.”
Complainant
asserts
that
“respondent
has
managed
to
escape
relatively
unscathed
as
a
result of its
non-compliance.”
(Closing
Brief,
p.
15)
It
argues
that
the Village of Bartonville’s
determination
to
reimburse respondent
is
inconsistent
with
the purpose of the
Act.
Apparently,
complainant takes the view that any insurance or collateral source for payment for environmental
clean
up
would
be
contrary to
the policy of the
Act
because violators
would
not
fully bear
all
adverse
effects oftheir conduct.
Obviously, neither law nor logic supports such a position.
The fourth Section 42(h) factor is
the amount of monetary penalty that would serve to deter
future
violations
by
respondent
and
aid
in
enhancing
voluntary
compliance
with
the
Act.
Complainant says that a substantial penalty is necessary based on the facts in this case, but fails to
identify those facts that support a substantial penalty.
Complainant
also
fails to
cite
any authority
for the proposition that the facts of this case call for a substantial penalty.
Respondent argues for a
$72,000.00
“minimum” penalty which
it says consists ofthe $56,000.00
that respondent
“shifted”
to the Village resulting in a “financial windfall” to
respondent plus
$16,000.00 because respondent
failed
to
exercise
due
diligence,
was
guilty
of
a
large
number
of violations,
some
of which
continued for a long time.
(Closing Brief, p.
16)
Respondent submits
that no
decision by the Board or any
court supports the imposition of
such a severe penalty based
on the facts ofthis
case.
The Board’s comprehensive review ofthe law
of penalty determinations
in
IEPA
v.
Berry
(May
10,
1990), PCB
88-71,
shows
that
over a
long
9
period of time the
average penalty imposed by the Board was significantly less
than
$10,000.00.
Id.
Slip
0p.
at 66-67.
Significantly,
the Board
in
its
opinion in
IEPA
v. Berry
did
not
identify
obtaining
reimbursement
for clean
up
costs
as
a
factor
to
consider
in
assessing
a
penalty.
If
anything,
the
decision
of
the
Village
of
Bartonville
to
reimburse
respondent
demonstrates
respondent’s
good
faith in proceeding
as advised by the Village,
and the
Village’s recognition of
the fact that when it
sold the property there were already open dumping violations present.
The
Board’s
decision in
People
v.
Aabott
Asbestos,
Inc.
(April
5,
2001),
PCB
99-189,
provides
guidance
as
to
what
might
be
an
appropriate
penalty
here.
Aabott
Asbestos,
Inc.
(“Aabott”) was an asbestos removal contractor which undertook asbestos removal
activities at two
different
power
plants.
Despite
its
actual
knowledge
of the
NESHAP
regulations,
Aabott
committed
multiple
violations
of the
Act
and
was
charged
with
two
counts
of
air
pollution
violations,
two counts offailure to
follow emission control procedures, and one count of improper
disposal ofasbestos.
There was testimony that
there were enormous
amounts ofvisible
emissions
ofRACM as Aabott conducted its work.
Aabott failed to appear at the hearing.
The complainant sought a penalty of
$65,000.00.
In
its opinion,
the Board noted that Aabott had
engaged in multiple serious violations
in less than a
one
year period and ignored the gravity of the case by failing to
participate.
Nevertheless, after
reviewing its precedents, the Board found that the appropriate civil penalty was
$30,000.00.
Respondent’s
conduct here pales in
comparison to Aabott’s flagrant and knowing violations
of the Act.
The Board’s decision in
People
v.
Aabott Asbestos, Inc.
demonstrates the complainant’s
request for a $72,000.00 penalty here involves a significant overreaching.
The final Section
42(h)
factor
focuses on previously adjudicated
violations of the Act by
respondent.
As acknowledged by complainant, there are no
such violations.
10
Respondent
submits
that
neither
the
facts
nor the
law
require
the
imposition
of a
civil
penalty.
To
the extent,
however, that the Board determines
that a penalty is appropriate, it clearly
should not exceed $3,000.00.
III.
NO
AWARD OF FEES
OR COSTS IS APPROPRIATE.
Despite seeking an
award of attorneys’ fees and costs pursuant to Section 42(f) of the Act in
the Complaint, the complainant did not
argue for such an award in its
Closing Brief
The
failure to
advance an argument
supported by citations to
the record and authority should
be deemed a waiver
ofthis claim.
Even in the absence ofwaiver, there is no basis for such an award because the Act requires
that the violation be willful, knowing, or repeated in order for an
award to
be made under
Section
42(f).
The
facts
discussed
above make
it
clear
that
there
was
simply
no
willful,
knowing,
or
repeated violation of the Act by the respondent.
IV.
CONCLUSION.
As
complainant
failed to
meet
its burden of proof,
the Board
should
find
in
favor of Blue
Ridge
on
paragraphs
11
through
14
of Count
II.
No
penalty
is
needed here,
but
any
penalty
assessed should
not
exceed $3,000.00.
Complainant should not be
awarded any attorneys’ fees
or
costs as the statutory basis for such award is absent.
Respectfully submitted,
Blue Ridge Construction Corporation, Respondent
BY:___
William R. Kohihase
Williams
R.
Kohlhase
for Miller, Hall
& Triggs,
Its
Attorneys
Miller,
Hall &
Triggs
416 Main Street
—
Suite
1125
Peoria, Illinois
61602
Telephone:
(309) 671-9600
11
CERTIFICATE OF SERVICE
I
hereby
certify
that
I
did
on
March
29,
2004
send
by
first-class
mail,
with
postage
thereon fully prepaid, by depositing in a United States Post Office box
true and correct copies of
the foregoing instrument entitled Respondent’s
Post-Hearing
Brief
to:
Ms. Dorothy Gunn, Clerk
Illinois Pollution Control Board
State of Illinois Center
100 West Randolph
—
Suite 11-500
Chicago, Illinois 60601
Mr. Delbert D. Haschemeyer
Assistant Attorney General
500 South
Second Street
Springfield, Illinois 62706
Mr. Brad Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph
—
Suite 11-500
Chicago, Illinois 60601
William R. Kohihase, forMiller, Hall & Triggs
