ILLINOIS POLLUTION CONTROL BOARD
September 3, 1998
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
GRAYSLAKE GELATIN COMPANY, an
Illinois corporation; BLIDCO, INC., an
Illinois corporation; DIVERSIFIED
ABATEMENT CONTRACTORS, INC., an
Illinois corporation, and JOHN NORDIGIAN,
individually and as president of
DIVERSIFIED ABATEMENT
CONTRACTORS, INC.,
Respondents.
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PCB 94-288
(Enforcement - Air)
INTERIM OPINION AND ORDER OF THE BOARD (by K.M. Hennessey):
Complainant, the People of the State of Illinois (People), has moved for summary
judgment (motion) on its two-count complaint against respondents Diversified Abatement
Contractors, Inc. (Diversified) and John Nordigian (Nordigian). The complaint alleges that
respondents violated the Illinois Environmental Protection Act (Act), 415 ILCS 5/1
et seq
.
(1996), when they removed regulated asbestos-containing materials (RACM) at a site at 40
Railroad Avenue, Grayslake, Illinois (the site).
In count I, the People allege that respondents violated Section 9.1(d) of the Act when
they failed to comply with a regulation governing the removal of RACM. The regulation at
issue, 40 C.F.R. 61.145(c), requires asbestos removal contractors to adequately wet all RACM
when stripping RACM from facility components. In count II, the People allege that
respondents also violated Section 9.1(d) of the Act by failing to comply with a regulation
governing the discharge of visible emissions and disposal of asbestos-containing waste
material, 40 C.F.R. 61.150(a) and (b).
In the motion, the People assert that there is no genuine issue of material fact regarding
these counts and that it is entitled to judgment as a matter of law. The People also request that
the Board grant the People the relief it requested in the amended complaint
1
(Comp.). In the
amended complaint, the People request, on each count, that the Board (1) order the
respondents to cease and desist from any further violations, (2) assess a civil penalty against
1
The Board construes the People’s references to the “Complaint” as references to the amended
complaint filed on April 29, 1998.
2
respondents of $50,000 for each violation, with an additional penalty of $10,000 per day for
each day of violation, (3) order respondents to pay the People’s costs and attorney’s fees in
this matter; and (4) grant such other relief as the Board deems appropriate and just. Comp. at
12-13, 16-17.
The Board grants the motion against Diversified as described below. The Board denies
the motion against Nordigian because the People have not established that he is liable for
Diversified’s violations.
The Board reserves ruling on the People’s requested relief. Within 14 days of the date
of this order, the People may request a hearing on the relief requested. If the People request a
hearing, a hearing will be held. If the People do not request a hearing, the Board will rule on
the People’s requested relief after the parties have briefed those issues under the briefing
schedule set forth in this order.
FINDINGS OF FACT
The Board finds the following facts based on the Request for Admission of Facts
(Request for Admission) that the People served on Diversified on May 10, 1995. See Exhibit
A to Motion. Diversified never responded to the Request for Admission and therefore is
deemed to have admitted all of the statements in the Request for Admission. See 35 Ill. Adm.
Code 103.162(c).
The Board notes, however, that the People did not serve the Request for Admission on
Nordigian. Therefore, the Board cannot find that Nordigian admitted the statements in the
Request for Admission.
Diversified is an asbestos abatement contractor based in Waukegan, Illinois. Request
for Admission at 3-4. In June 1992, Grayslake Gelatin Company (Grayslake Gelatin) retained
Diversified to remove asbestos thermal insulation from an evaporator and from a railroad tank
car on a concrete floor at the site. Request for Admission at 4. Grayslake Gelatin also
retained Diversified to remove asbestos thermal insulation from a tank on the ground outside
the Grayslake Gelatin building at the site.
Id
. At that time, there was approximately 225
square feet of friable asbestos material on the tank, 84.375 square feet of friable asbestos
material on one component of the evaporator, and 842 square feet of friable asbestos material
in and on the railroad tank car.
Id
. On June 11, 1992, Diversified filed a notification of
demolition and renovation with the Illinois Environmental Protection Agency (Agency).
Id.
Diversified left the Grayslake Gelatin facility in July 1992. When performing the
asbestos abatement work, Diversified:
1.
failed to adequately wet all of the RACM when it stripped RACM from the tank,
evaporator, and railroad tank car;
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2.
did not obtain prior written approval from the Administrator of the U.S.
Environmental Protection Agency (USEPA) and the Agency to strip the RACM off
of facility components without wetting;
3.
discharged visible emissions to the outside air during the abatement of the tank,
evaporator, and railroad tank car;
4.
did not wet all of the asbestos-containing waste material that it collected from the
tank, evaporator, and railroad tank car;
5.
did not process all of the asbestos-containing waste material into nonfriable form;
6.
did not use an alternative emission control and waste treatment method that received
the prior approval of the Administrator of the USEPA or the Agency; and
7.
failed to deposit all of the asbestos-containing waste material emitted during the
abatement of the tank, evaporator, and railroad tank car at a waste disposal site.
Request for Admission at 4-5.
DISCUSSION
Summary judgment is appropriate when the pleadings, depositions, admissions on file,
and affidavits disclose that there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d
460, 483, 693 N.E.2d 358, 370 (1998). In ruling on a motion for summary judgment, the
Board “must consider the pleadings, depositions, and affidavits strictly against the movant and
in favor of the opposing party.”
Id
. Summary judgment "is a drastic means of disposing of
litigation," and therefore it should be granted only when the movant's right to the relief "is
clear and free from doubt."
Id
., citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867,
871 (1986).
Violations
As noted above, both of the counts in the complaint allege that respondents Nordigian
and Diversified have violated Section 9.1(d) of the Act. That Section provides in pertinent
part as follows:
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 . . . . 415 ILCS 5/9.1(d) (1996).
In count I, the People allege that respondents have violated Section 9.1(d) of the Act by
violating a Clean Air Act regulation on asbestos, 40 C.F.R. 61.145(c), adopted pursuant to
4
Section 112 of the Clean Air Act, 42 U.S.C. Section 7412. The regulation applies if the
combined amount of RACM to be stripped at a facility being renovated is at least 260 linear
feet on pipes or at least 160 square feet on other facility components. See 40 C.F.R.
61.145(a)(4). The regulation requires operators of renovation activities to adequately wet all
RACM when stripping it from facility components. The regulation relieves the operator of the
renovation activity of the wetting requirement if the removal contractor obtains the USEPA
Administrator’s prior written approval not to wet RACM. See 40 C.F.R. 61.145(c)(3).
In count II, the People allege that respondents violated Section 9.1(d) of the Act by
violating another Clean Air Act regulation on asbestos, 40 C.F.R. 61.150(a) and (b). Among
the provisions of this regulation that respondents allegedly have violated are:
1.
a requirement to discharge no visible emissions to the outside air during the
collection, processing, packaging, or transporting of any asbestos-containing
waste material, or to use one of the emission control and waste treatment
methods specified in the regulation, including:
a.
adequately wetting asbestos containing waste material;
b.
processing asbestos-containing waste material into nonfriable forms;
or
c.
using an alternative emission control and waste treatment method that
has received prior approval by the USEPA Administrator (see 40
C.F.R. 61.150(a)); and
2.
a requirement to dispose of all asbestos-containing waste material as soon as
is practical at an appropriate disposal site described in the regulation (see 40
C.F.R. 61.150(b)).
The Board first considers the People’s motion against Diversified. Whether Diversified
violated 40 C.F.R. 61.145(c) depends first on whether the asbestos-containing material that
Diversified removed from the tank, evaporator, and railroad tank car was RACM. RACM
includes “friable asbestos material,” and under the Request for Admission, Diversified
admitted that there was friable asbestos material on the tank, evaporator, and railroad tank car.
Request for Admission at 4.
As noted above, Section 61.145(c) applies only if the combined amount of RACM to
be stripped at a facility being renovated is at least 260 linear feet on pipes or at least 160
square feet on other facility components. See 40 C.F.R. 61.145(a)(4). The combined amount
of RACM to be stripped at the site in June and July 1992 exceeded this amount (see Request
for Admission at 4), and therefore Section 61.145(c) applied to the renovation.
The Board also finds that Diversified is an “operator of a . . . renovation activity” as
that term is defined in the applicable regulations. See 40 C.F.R. 61.141. “Renovation”
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means “altering a facility or one or more facility components in any way, including the
stripping or removal of RACM from a facility component.”
Id
. An operator of a renovation
activity includes “any person who owns, leases, operates, controls, or supervises the . . .
renovation operation . . . .”
Id
. Diversified performed renovations at the site by removing
RACM from the tank, evaporator, and railroad tank car, which are facility components.
Id.
Therefore, Diversified was an operator of a renovation activity.
The Board further finds that Diversified violated 40 C.F.R. 61.145(c) when it failed to
adequately wet the RACM that it stripped from the tank, evaporator, and railroad car tank.
Request for Admission at 4-5. Diversified did not obtain the USEPA Administrator’s prior
written approval not to wet this RACM, and therefore remained subject to that requirement.
Request for Admission at 5. The Board therefore grants the People summary judgment against
Diversified for violating 40 C.F.R. 61.145(c) and therefore Section 9.1(d) of the Act.
1
In addition, the Board finds that Diversified violated 40 C.F.R. 61.150(a) and (b).
2
Section 61.150(a) required Diversified not to discharge any visible emissions to the outside air
during the handling of asbestos-containing waste material, or to use one of the specified
emission control and waste treatment methods. The Board finds that Diversified violated
Section 61.150(a) by not complying with either option. Diversified discharged visible
emissions into the outside air during the handling of asbestos-containing waste material
generated by the abatement of the tank, evaporator, and railroad tank car (Request for
Admission at 5). It also failed to (1) wet all of the asbestos-containing waste material that it
collected from the tank, evaporator, and railroad tank car (
Id
.); (2) process all of the asbestos-
containing waste material into nonfriable form, or (3) use an alternative emission control and
waste treatment method with the prior approval of the USEPA Administrator (
Id
.). The Board
therefore grants the People’s motion against Diversified for violating 40 C.F.R. 61.150(a) and
thus Section 9.1(d) of the Act.
Section 61.150(b) requires all asbestos-containing waste material to be properly
disposed of “as soon as is practical by the waste generator.” 40 C.F.R 61.150(b). For
reasons set forth above, Diversified is a “waste generator,” which is defined as any “operator
of a source covered by [40 C.F.R. Part 61] whose act or process produces asbestos-containing
waste material.” 40 C.F.R 61.141. The Board finds that Diversified violated Section
61.150(b) when it failed to deposit at a waste disposal site all of the asbestos-containing waste
material emitted during the abatement of the tank, evaporator, and railroad tank car. Request
1
The Board notes that the People’s first amended complaint and motion allege that respondents
violated 40 C.F.R. 61.145(c) by failing to properly contain the RACM after wetting. Comp.
at 12; Mot. at 3. The Request for Admission does not state that Diversified failed to properly
contain RACM after wetting; therefore, the Board cannot find that Diversified committed this
violation.
2
These provisions apply to each “operator of any source covered under the provisions of . . .
61.145 . . . .” 40 C.F.R. 61.150. As discussed, Section 61.145(c) applies to renovation
activities and Diversified was an operator of a renovation activity.
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for Admission at 5. The Board therefore grants the People summary judgment against
Diversified for violating 40 C.F.R. 61.150(b) and therefore Section 9.1(d).
The Board cannot grant the People summary judgment on its claims against Nordigian,
however. As noted earlier, Nordigian was not served with the Request for Admission, and
thus cannot be deemed to have admitted the statements in the Request for Admission.
Furthermore, while the People state in the motion that Nordigian can be held liable for
Diversified’s violations because he is the “corporate officer who ran the day to day business of
Diversified” (Mot. at 3), the People have submitted no affidavit or other proof supporting this
factual claim. Therefore, even if Nordigian could be held liable for Diversified’s violations if
he did run its day to day operations (a legal question that the Board does not now reach), the
absence of proof on this issue precludes summary judgment.
Requested Relief
Penalties
In the complaint, the People request that the Board assess a civil penalty against
respondents of $50,000 for each violation, with an additional penalty of $10,000 per day for each
day of violation. The People also request a cease and desist order.
In assessing a civil penalty or
a cease and desist order, the Board must considers the facts and circumstances set forth in
Section 33(c) of the Act. See 415 ILCS 5/33(c) (1996). In addition, Section 42(h) of the Act
authorizes the Board to consider various other factors in determining the appropriate civil
penalty. See 415 ILCS 5/42(h) (1996).
While the People ask for a civil penalty of $10,000 for each day that a particular
violation continued, the People provide no information on the number of days each of these
respective violations continued. Accordingly, the Board will reserve ruling on the request for
penalties and a cease and desist order. The People may address these issues, as well as any
relevant Section 33(c) or 42(h) factors, at hearing or in pleadings, as outlined below.
Costs and Attorney’s Fees
In the complaint, the People request that the Board order respondents to pay the
People’s costs and attorney’s fees in this matter pursuant to Section 42(f) of the Act. Section
42(f) provides in pertinent part as follows:
[T]he Board . . . may award costs and reasonable attorney’s fees, including the
reasonable costs of expert witnesses and consultants, to the State’s Attorney or
the Attorney General in a case where he has prevailed against a person who has
committed a willful, knowing or repeated violation of the Act. 415 ILCS
5/42(f) (1996).
The People have not directly addressed whether Diversified’s violations were willful,
knowing, or repeated. The People also have not presented information on the People’s costs
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and attorney’s fees. The Board therefore will reserve ruling on the People’s request for costs
and attorney’s fees; the People may address these issues through hearing or pleadings, as
outlined below.
CONCLUSION
The Board grants the People’s motion for summary judgment against Diversified as set
forth on pages 5-6. The Board denies the People’s motion for summary judgment against
Nordigian.
The Board reserves ruling on the People’s request for relief against Diversified. Within
14 days of the date of this order, the People may request a hearing on penalties, a cease and
desist order, costs, and attorney’s fees. If the People make the request, a hearing will be held.
If the People do not request a hearing within 14 days, the Board will rule on the requested
relief the following briefing schedule: the People may file a brief on penalties, a cease and
desist order, costs, and attorney’s fees within 30 days of the date of this order; Diversified
may file a response brief within 20 days of the People’s filing of its brief. In these pleadings,
any facts asserted that are not of record must be supported by affidavit or other appropriate
proof.
ORDER
1. The Board grants the People’s motion for summary judgment against Diversified on
the following matters:
a. The Board finds that Diversified violated 40 CFR 61.145(c) and therefore
violated Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (1996); and
b. The Board finds that Diversified violated 40 CFR 61.150(a) and (b) and
therefore violated Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (1996).
2. The Board denies the People’s motion for summary judgment against Nordigian.
3. The Board reserves ruling on the People’s motion for summary judgment against
Diversified for penalties, a cease and desist order, costs, and attorney’s fees.
a. Within 14 days of the date of this order, the People may file with the Board a
request for a hearing on penalties, a cease and desist order, costs, and attorney’s
fees. If the request is made, a hearing will be held.
b. If the People do not request the hearing described in paragraph 3(a) within 14
days of the date of this order, the Board will rule on the People’s request for
relief after the following briefing schedule:
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i. Within 30 days of the date of this order, the People may file a brief on
penalties, a cease and desist order, costs, and attorney’s fees to be imposed
on Diversified;
ii. Within 20 days of the People’s filing under paragraph 3(b)(i), Diversified
may file a response brief.
c. Any facts asserted that are not of record must be supported by affidavit or other
appropriate proof.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above interim opinion and order was adopted on the 3rd day of September 1998 by a vote
of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
