Lisa Madigan
ATTORNEY GENERAL
The Honorable
Dorothy Gunn
Illinois Pollution
Control
Board
State of Illinois
Center
100 West Randolph
Chicago,
Illinois
60601
C~.E~K’3
Q~i~’~
APR
1 ~ 2004
STATE OF ILLINOIS
Pollution Control Board
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 REPLY BRIEF TO RESPONDENT’S POST-HEARING
BRIEF 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.
DDH/pp
Enclosures
Very truly yours,
500 South
Second Street,
Springfield,
Illinois
62706
•
(217) 782-1090
•
‘l’l’\:
(217)
785-2771
•
Fax:
(217)
782-7046
100
West
Randolph
Street, Chicago,
Illinois
60601
•
(312)
814—301)0
•
I”I’Y:
312)
814—3374
•
Fax: (3l2)
814—3806
1001
1
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(
irhond
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Ijlinoj’,
62901
(61~s)~2964)8)
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OFFICE
OF THE ATTORNEY GENERAL
STATE OF
ILLINOIS
April
9, 2004
rt D.
Haschemeyer
Environmental Bureau
500
South Second Street
Springfield,
Illinois 62706
(217) 782-9031
Respondent.
)
)
APR132004
)
)
STATE OF ILLINOIS
)
PCB NO.
02-115
Pollution Control
Board
)
(Enforcement)
)
To:
William
R.
Kohihase
Miller, Hall
& Triggs
1125 Commerce
Bank Building
416 Main
Street
Peoria,
IL 61602
NOTICE
OF FILING
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
REPLY
BRIEF
TO
RESPONDENT’S
POST-HEARING
BRIEF,
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
500
South
Second Street
Springfield,
Illinois 62706
217/782-9031
Dated:
April
9, 2004
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigati
ivision
BY:
DELBERT D.
HASCHEMEYER
Assistant Attorney General
Environmental Bureau
•BEFORE THE ILLINQIS POLLUTION. CONTROL BOARD.
D
CLERK’S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
BLUE RIDGE CONSTRUCTION CORPORATION,)
an Illinois
corporation,
-
CERTIFICATE
OF SERVICE
I
hereby certify that
I
did
on April
9, 2004,
send
by First Class
Mail, 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 REPLY BRIEF TO
RESPONDENT’S
POST-HEARING
BRIEF
To:
William R.
Kohlhase
Miller, Hall
& Triggs
1125 Commerce
Bank Building
416
Main Street
Peoria,
IL 61602
and
the original
and ten copies by First Class
Mail 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 First Class
Mail 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.
Haschemeyer
Assistant Attorney General
This filing
is
submitted
on recycled paper.
•
RECE~V~D
-•
CLERKS OFFIeE
BEFORE THE ILLINOIS POLLUTIO~tCO~TRQL
BOARD
AP~13
20O4--~
•
.••.
STATE-OEILLINO1S~
PEOPLE OF THE STATE
OF ILLINOIS,
)
PolIut~onControl Board
Complainant,
)
)
v.
)
PCB
NO.
02-115
)
(Enforcement)
BLUE RIDGE CONSTRUCTION CORPORATION,)
an
Illinois corporation,
)
Respondent.
)
COMPLAINANT’S REPLY
BRIEF TO
RESPONDENT’S
POST-HEARING
BRIEF
Now comes the Complainant,
PEOPLE
OF THE
STATE
OF ILLINOIS,
by
Lisa
Madigan,
Attorney General of the
State
of Illinois,
and
provides the following
Reply Brief to
Respondent’s
Post-Hearing Brief.
REPLY TO RESPONDENT’S ARGUMENT
-
COMPLAINANT FAILED TO PROVE
THE THRESHOLD QUANTITIES OF RACM WERE
PRESENTAT THE SITE
•..
•
•
Respondent
in
its
Post-Hearing
Brief argues
that the
evidence
failed
to
establish
by
a
preponderance of the evidence that the threshold
amount of RACM
required
by 40 CFR Section
61 .45(a)(1)(ii) was present at the site.
Respondent demeans Complainant’s Exhibit 2 (the ten-day
notification form submitted
by Respondent’s asbestos contractor) arguing, “in view of the fact that
the
only evidence
in
the record
of tests
of material outside the dining
hail
showed
there was
no
RACM
present
in
the
ravine,
a
ten-day
notice
containing
an
unexplained
estimate
which
is
consistent with
all
other facts cannot reasonably
be
said
to
establish
by
a preponderance of the
evidence
that
the threshold quantities of RACM were present.”
Respondent’s argument
has
no
merit.
First,
as testified to by
Mr. Hancock,
Plaintiff’s Exhibit
2 is a legal document required to be
1
filed by
Federal Regulations (40 CFR Subpart
M-61 .145).
The document was
prepared by Terry
Mclntire
with
Sentry,
a
Division
of
Williams
Corporation,
the
asbestos
removal
contractor,
a
company the Agency deals
with
frequently;
thus,
an experienced
asbestos
removal
contractor.
(Trans.
pp.
28
&
29).
The
1,000
cubic feet
of
RACM
indicated
by
Complainant’s
exhibit to
be
present is a number determined after inspection and measurement.
(Trans. p. 56).
Secondly, the
information in Complainant’s Exhibit 2 is certified
to
be correct by Terry Mclntire.
Thirdly, there are
no facts in the record which are inconsistent with the information
in Complainant’s
Exhibit
2.
The
amount of RACM on pipes or surface area indicated by Complainant’s exhibit is 0.
This is entirely
consistent with Mr. Hancock’s and
Mr. Palmer’s testimonies that it was not possible to measure the
pipes because they had already been demolished
or removed and, thus, impossible to determine
the amount of RACM present on the pipes or on surface areas of the building.
It is also consistent
with the observations
of Mr.
Hancock of RACM
being
located
on the ground
in
the building
and
being advised
by Mr.
Palmer that demolition debris had
been pushed
into the ravine in back (Stip.
Exhs. A
&
B).
Consequently, the completion of the notice indicating 0 RACM for pipes and surface areas
is entirely consistent with
and
as
required
by
40
CFR 61.145(a)(1).
Further,
an
inspection
of
Complainant’s
Exhibit 2 clearly indicates
it is for Respondent’s
facility.
The
exhibit,
on
its face,
indicates it is for the old State Mental
Hospital/Dining Hall at 4201 Constitution
in Bartonville, Peoria
County,
Illinois.
The exhibit further indicates that the RACM
in the structure is located on
its north
side
of outside
building and
that the building’s
size was 5,790 square feet.
All
of these facts are
consistent with other evidence in
the record.
It is clear Exhibit 2 is the required ten-day notice for
Respondent’s
facility,
which
is the
subject
of this
case.
It
is further clear that
the
notice
was
submitted
by a representative of the Respondentand,
as such, isan admission by the Respondent.
Further,
it is clear that Plaintiff’s
Exhibit 2
is the
only credible evidence
in
the record defining
the
2
amount of RACM.
Thus, there is no doubt that the record established
by a preponderance of the
evidence that the amount of RACM at the site exceeded the threshold amount of
1
cubic meter of
RACM required by4O CFR 61.145(a)(1)(ii) and, therefore, establishes the violations as
alleged in
paragraphs
11,
12
and
13
of Count
II
of the Complaint.
II.
REPLY TO RESPONDENT’S ARGUMENT
-
THERE IS
NO JUSTIFICATION
IN THE
RECORD FOR THE PENALTY SOUGHT BY COMPLAINANT
Respondent takes issue
with
Complainant’s
analysis
of the Section
42(h)
factor
stating
Complainant’s
analysis “is severely flawed.”
42(h)(1)
Duration
and Gravity.
Respondentacknowledges Respondent commenced demolition on May 17, 2000, and the
remediation
project
was
completed
on
April
19,
2001.
Although
Respondent asserts that
the
Stipulation does
not establish that any or all of
its violations
continued for 340 days, Respondent
fails to
take
issue
with
any
single violation
identified
in
Complainant’s
brief as
lasting
340
days.
Thus,
other than
a broad conclusoty statement,
Respondent fails to
identify how
Complainant’s
analysis
of violations
relative to
Section 42(h)(1) is flawed.
As indicated, the calculations were a
useful
exercise as a measure and gravity of the violations.
That is,
the large numbers reflect the
fact that the asbestos-containing debris laid
exposed for a
long time.
In fact, the
Board
can take
official notice that the debris in laying exposed from May 11, 2000, to April
19, 2001, was exposed
during all four seasons of the year, spring,
summer, fall and winter, with all the wind, rain, dust, and
snow which occurs during the fourseasons in Illinois. Thus, as the numbers indicate, the violations
were serious and they lasted
a
long time.
42(h)(2)
Due diligence.
Complainant notes that, as expected,
Respondent raises
as an argument its checking with
the Village to
determine
if permits
were necessary.
As indicated
in
Complainant’s closing
brief,
3
such an argument should
be summarily dismissed.
Complainant stands
on its 42(h)(2) argument
presented
in its closing
brief.
42(h)(3) and 42(h)(4) Any economic benefit accrued by the violator because of delay
in
compliance with requirements.
Respondent argues that reimbursement by the Village of the cleanup
expenses is not an
economic benefit because of delay.
There
is no question that reimbursement
by the Village was
an
economic
benefit
to
the Respondent.
Further,
it
appears
that
the
amount
expended
and
reimbursed by the City was an amount necessary to
bring Respondent into compliance.
Because
of the conditions of the site prior to the commencement of demolition activities by Defendant,
(see
testimony of Mr. Palmer, Trans.
pp. 61-63) and the condition
of the site when first inspected by Mr.
Hancock (Stip. Exhs. A & B),
it is impossible to accurately determine if compliance cost would have
been
more
or
less
than
the
$59,965.67
expended.
Consequently,
it
is
impossible
to
define
economic
benefit
in the classic sense; that
is,
money saved
or avoided
because the expenditure
was delayed.
What is clear is that, because of the delay in
returning
to compliance, capital
cost
necessary to
dispose
of all of the asbestos and
asbestos-contaminated
waste was $59,965.67.
Because of the reimbursement by the Village,
Respondent’s actual costs were minimized, and do
not reflect the serious nature of the violation,
which it does not dispute.
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 this Act.
Should the
Board determine that the reimbursement
by the Village of the cost of coming
into compliance does not constitute windfall economic benefit accrued by the violator resulting from
lack of diligence in compliance,
Complainant would urge the Board
to
consider the reimbursement
in
light
of
Section
42(h)(4).
Section
42(h)(4) authorizes
the
Board
to
consider the
amount
of
penalty which will serve to
deter future violations by the violators and
others similarly situated.
It
is elementary that for a penalty to operate as a deterance,
it must impose an economic penalty for
4
violation of the Act.
A person cannot make money as a result of noncompliance.
In this case, the
cost of non-compliancewas $59,965.67.
That isthe amount to achieve compliance (SUp. para. 20,
Exh.
M).
Respondentwas reimbursed either $56,000.00 (Stip. para. 30), or $59,965.77 (Exh.
M).
Any
penalty
of
less
than
$56,000.00
and
Respondent
walks
away
making
money
on
his
noncompliance.
Thus, if the penalty is to operate asa deterance, it must be more than $56,000.00
or $59,965.67.
Respondent cites
IEPA v. Ber~’y,
PCB 88-71.
It should be noted that in that case, the Board
calculated the maximum penalty as $65,000.00.
The Board
imposed
a penalty of $10,000.00,
or
approximately 15
of the maximum exposure.
In the instant case,
15
of the maximum exposure
is approximately$4,627,500.00.
It should be noted that subsequent to the Berrycase, the General
Assembly increased
the maximum penaltyfrom $10,000.00 to
$50,000.00
(a five-fold
increase),
and the continuing penalty from $1,000.00 per day to $10,000.00 (a ten-fold increase).
Thus, if the
Berry penaltywas adjusted proportionately to the increase in potential penaltymade bythe General
Assembly, Berry’s
penalty would have been
at least
in excess of $50,000.00.
Respondent also cites
People v. AbbottAsbestos,
PCB 99-189, in which the Board imposed
a
penalty of $30,000.00. A review of that case indicates that the Board found violations of Section
9(a)
and
35
III.
Adm.
Code
201.141
(Counts
I
and
II);
Section
9.1(d)(1)
and
40
CFR 145(c)(1),
(c)(3)
and
(c)(6)(i)
(Counts
Ill
and
IV);
and
Section
9.1(d)(1)
and
40
CFR 61.150(a)(1)(u).
The
Board
further
found
the
violations
spanned
approximately
a
year
in
time
asviolations
were
observed
at
one facility
in
March
of
1998
and
another facility
in
1999.
In
the
instant case,
the
Board
has found that
Respondent violated Section 9(a) of the Act and 35
III. Adm.
Code 201.141
(Count
I); 40 CFR 61.145(a) and
(b)(1)
(Count II);
Section
21(a),
(e), (p)(l) and
(p)(2)
of the Act
(Count
Ill); and
Section
12(d) of the Act (Count
IV).
The evidence
establishes Respondent also
violated 40 C.F.R. 61.145(e)(1), 61.145(c)(6) and 61.145(c)(8) as alleged in
Count II.
Further, the
5
record
establishes that the violations
continued for approximately a year.
Thus,
the
Abbott
case
and the instant case are very similar.
While the
Abbott
case
involves violations at two facilities, the
instant case involves more violations; nine violations found by the Board
in response to the Motion
for
Summary
Judgment,
plus
an
additional
three
violations
süpportèd
by the
hearing
record.
Further,
the
Abbott
case involves primarily air violations, whereas the instant case not only has air
violations,
it also includes open dumping
and a clear threat of water pollution.
Further, there is no
indication in the
Abbott
case that the Respondent was reimbursed for any extra cost arising
as
a
result of its
noncompliance.
In
short,
the
Abbott
case
supports this Complainant’s
request for a
$16,000.00
penalty (quite reasonable),
plus the $56,000.00 Respondent was
reimbursed.
SUMMARY
For
the
foregoing
reasons,
Complainant
respectfully
requests
that
the
Board
impose
a
penalty of $72,000 as requested in
Complainant’s closing
brief.
Respectfully submitted,
PEOPLE
OF THE
STATE OF ILLINOIS,
ex rel.
LISA MAD IGAN, Attorney General
of the
State of Illinois
MATTHEW J.
DUNN, Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:
LBERT
.
H
SCHEMEYE
Environmental Bureau
Assistant Attorney General
500
South
Second Street
Springfield,
Illinois
62706
21 7/782-903Y
Dated:
~74
G:\Environmental Enforcement\DeI\Blue Ridge
Reply Brief.wpd
6