November 22, 2004
RECE~VED
CLERK’S OFFICE
NOV
2
9
2004
STATE OF ILLINOIS
Pollution
Control Board
The Honorable Dorothy Gunn
Illinois Pollution
Control
Board
James
R.
Thompson Center,
Ste.
11-500
100 West Randolph
Chicago,
Illinois 60601
Re:
People v. James Zeller,
et al.
Dear Clerk Gunn:
Enclosed
for
filing
please
find
the
original
and
ten
copies
of a
NOTICE
OF
FILING,
COMPLAINT and APPEARANCE in regard to the above-captioned matter.
Please file the originals
and
return
file-stamped
copies
of the documents
to
our
office
in
the
enclosed
self-addressed,
stamped envelope.
Thank you for your
cooperation and
RC/pp
Enclosures
500 South Second Street,
Springfield,
Illinois
62706
•
(217) 782-1090
•
TTY:
(217)
785-2771
•
Fax:
(217)
782-7046
100 West
Randolph Street, Chicago,
Illinois
60601
•
(312) 814-3000
•
TTY:
(312) 814-3374
•
Fax: (312) 814-3806
1001
East Main, Carbondale,
Iltinois
62901
•
(618) 529-6400
•
TTY: (618)
529-6403
•
Fax:
(618) 529-6416
Lisa Madigan
ATTORNEY
GENERAL
OFFICE
OF THE ATFORNEY GENERAL
STATE OF ILLINOIS
Callery
Environmental
Bureau
500 South
Second Street
Springfield,
Illinois 62706
(217) 782-9031
c
r=
~v ~
CLERK’S OFFICE
NOV29
2004
CERTIFICATE OF SERVICE
STATE OF ILLINOIS
Pollution
Control Board
I
hereby certify that
I
did
on
November 22, 2004,
send by certified
mail, with
postage
thereon fully prepaid, by depositing
in
a United
States
Post Office
Box a true and
correct copy
of the following instruments
entitled
NOTICE
OF
FILING,
ENTRY OF APPEARANCE and
COMPLAINT:
To:
JAMES
ZELLER
THOMAS ZELLER
d/b/a TZ Builders
d/b/a TZ Builders
900
Skyline Drive
900
Skyline Drive
Marion,
IL 62959
Marion,
IL
62959
MATTHEW SHORT
d/b/a Short Bros.
Excavating
& Trucking
121
54
Short
Drive
Marion,
IL 62959
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
James
R.
Thompson Center
Suite
11-500
100
West
Randolph
Chicago,
Illinois 60601
I
~
RAYMOND CALLERY
Assistant Attorney General
-
This filing is submitted on
recycled paper.
RKs OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
~
292004
PEOPLE OF THE STATE OF
)
STATE OF ILLU\JOI3
ILLINOIS,
)
Pollution
Control Board
)
Complainant,
)
vs.
)
PCB
No.
~
M
)
(Enforcement)
JAMES ZELLER,
THOMAS ZELLER,
)
and
MATTHEW SHORT,
)
Respondents.
NOTICE
OF FILING
To:
JAMES ZELLER
THOMAS ZELLER
d/b/a
TZ Builders
d/b/a TZ
Builders
900 Skyline
Drive
900
Skyline Drive
Marion,
IL 62959
Marion,
IL
62959
MATTHEW
SHORT
d/b/a Short
Bros.
Excavating
& Trucking
121
54
Short Drive
Marion,
IL 62959
PLEASE TAKE
NOTICE that
on this date
I
mailed for filing with the Clerk of.the Pollution
Control
Board
of
the
State
of
Illinois,
a
COMPLAINT,
a
copy
of which
is attached
hereto
and
herewith
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 this
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, theClerk’s Office
or an attorney.
1
FURTHER,
please
take
notice
that
financing
may
be
available,
through
the
Illinois
Environmental
Facilities
Financing Act,
20
ILCS 3515/1
(2002),
to correct the pollution alleged in
the Complaint
filed
in this case.
Respectfully submitted,
PEOPLE
OF THE STATE
OF
ILLINOIS
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHE~4/J.DU
ef
Environrjie”l~taI
nforcemen
Asbesto
~
RAYMOND
CALL
Y
Assistant Attorney General
Environmental Bureau
500
South Second
Street
Springfield,
Illinois 62706
217/782-9031
Dated:
November 22, 2004
2
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARD
NOV
292004
PEOPLE OFTHESTATE OF
)
Poflution~~3~k~d
ILLINOIS,
Complainant,
)
vs.
)
No.
JAMES
ZELLER, THOMAS ZELLER,
)
and
MATTHEW SHORT,
)
Respondent.
ENTRY OF APPEARANCE
On
behalf
of
the
Complainant,
PEOPLE
OF THE STATE OF ILLINOIS, RAYMOND
CALLERY, Assistant Attorney General of
the
State
of Illinois,
hereby enters
his
appearance
as
attorney of record.
Respectfully submitted,
PEOPLE OF
THE
STATE OF ILLINOIS,
LISAMADIGAN
Attorney General of the
State
of Illinois
MATTHEW J. DUNN, Chief
Environr~entalEfltQrcementI.~
Di~
BY~
Environmental
Bureau
Assistant Attorney General
500 South
Second Street
Springfield,
Illinois 62706
217/782-9031
YMOND CALLERY
Dated:
November 22, 2004
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION
CONTROL BOARD
NOV
292004
PEOPLE OF THE STATE
OF ILLINOIS,
)
STATE OF ILLINOIS
Pollution Control Board
Complainant,
vs.
)
PCB No.~
)
(Enforcement)
JAMES ZELLER, THOMAS ZELLER, and
)
MATTHEW SHORT,
)
Respondents.
COMPLAINT
The PEOPLE
OF THE STATE OF ILLINOIS,
by LISA MADIGAN, Attorney General of
the State of Illinois,
and
at the request of the ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
complains
of the Respondents, JAMES
ZELLER, THQMAS ZELLER, and
MATTHEW SHORT,
as follows:
COUNT
I
NESHAP VIOLATIONS
1.
This Complaint
is brought by
the Attorney General 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 Illinois
Environmental
Protection Act (“Act”), 415
ILCS 5/31
(2002).
2.
The Illinois EPA is an
agency of the State
of Illinois created
by the Illinois
General Assembly
in
Section 4 of the Act, 415
ILCS 5/4 (2002), and
charged,
inter a/ia,
with
the
duty of enforcing the Act in proceedings
before the Illinois
Pollution
Control Board
(“Board”).
3.
The Complaint is brought pursuant to
Section 31
of the Act, 415 ILCS 5/31
(2002),
after providing the
Respondents with
notice
and
opportunity for a meeting with the
Illinois EPA.
4.
JAMES ZELLER is the owner of a parcel of property
at 408 South~
Court Street in
Marion, Williamson County,
lIJinois.
5.
THOMAS
ZELLER is a contractor doing
business as “TZ Builders.”
-
6.
MATTHEW SHORT is
a contractor doing
business as “Short Brothers
Excavating and Trucking.”
7.
On
or about
March
31, 2003,
JAMES ZELLER sold
to
MATTHEW SHORT a
building
located at 408
South
Court
Street for the express
purpose of being
demolished
and
removed from the property.
The document signed by
both parties
also states as follows:
“Buyer
is aware of asbestos
siding
and that is
sic
has
to be handled with
legal disposal.”
8.
On
or before April
2, 2003,
MATTHEW
SHORT
employed
heavy equipment to
demolish
the building
and
to remove the siding
from the building.
In
response to
a
citizen
complaint on that date,
the
Illinois EPA visited the site and
photographed the building.
On April
8,
2003,
the Illinois
EPA attempted to contact JAMES ZELLER and
MATTHEW SHORT.
9.
On
a date better known to the Respondents,
MATTHEW SHORT ceased
demolition activities.
On a
date
better known to the Respondents, THOMAS ZELLER
resumed
demolition activities, employing heavy
equipment to
demolish the building and to
remove the
siding
from the building.
10.
On October 30, 2003,
the
Illinois EPA returned
to the site
in
response to another
citizen
complaint.
All
of the siding
had
been
removed from the building with only the structural
steel
beams remaining
intact;
a second,
smaller building
had
been completely demolished.
The
Illinois
EPA observed demolition debris remaining at the site including transite panels
and
broken pieces thereof.
Samples were
collected of the debris and the subsequent analyses
confirmed that the transite
pieces
contained
asbestos ranging from
18
to
21.
The
Illinois
EPA attempted to
contact JAMES ZELLER again.
2
11.
On
November 3,
2003, the Illinois EPA
returned to the site to further
its
investigation.
The Illinois
EPA observed that the transite
panels had
been crushed
and
most of
the debris
had
been loaded
into an open roll off box.
12.
Section
9.1(d) of the Act, 415
ILCS 5/9.1(d)
(2002),
provides:
(d)
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;
*
*
*
13.
The regulations on National
Emission Standards for Hazardous Air Pollutants
(“NESHAP”) for asbestos, 40 CFR Part 61, Subpart
M,
were adopted pursuant to
Section
112
of the Clean Air Act, 42 USC
§7412.
Asbestos
is
regulated as
a
hazardous air pollutant
because
it is a carcinogen.
Regulated asbestos-containing materials (“RACM”) contain
more
than one
percent asbestos and
are generally “friable,” which means such
materials, when
dry,
can
be
crumbled, pulverized,
or reduced to powder by hand
pressure.
14.
40
CFR §61.145, provides the following
definitions:
Category
I
nonfriable
asbestos-containing material
(ACM) means
r
asbestos-containing packings, gaskets, resilient floor covering, .and
asphalt
roofing products
containing more than
1
percent asbestos
as determined using
the method
specified
in appendix E,
subpart
E,
40
CFR part 763,
section
1,
r
Polarized
Light Microscopy.
Category
II
nonfriable
ACM means
any material, excluding
Category
I
nonfriable ACM,
containing more than
1
percent asbestos
as determined using
the methods specified
in
appendix E,
subpart
E,
40 CFR part 763,
section
1,
Polarized
Light Microscopy that,
when dry,
cannot be crumbled,
pulverized,
or
reduced
to powder by
hand pressure.
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.
Owner or operator of a
demolition or renovation activity means any
person who owns,
leases, operates,
controls, or supervises the facility being
3
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 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.
Structural
member means any load-supporting
member of a facility, such
as
beams and
load
supporting
walls;
or any nonload-supporting
member,
such
as ceilings and
nonload-supporting walls.
15.
40 CFR §61.145, provides,
in
pertinent part:
(a)
Applicability.
To determine which requirements
of paragraphs (a),
(b),
and (c) of this
section
apply to the owner or operator of a demolition or
renovation
activity and prior to the commencement of the demolition or
renovation,
thoroughly inspect the affected facility or part of the facility
where the demolition or renovation
operation will occur for the presence
of asbestos,
including
Category
I
and
Category II
nonfriable ACM.
The
requirements of paragraphs (b) and
(c) of this section apply to each
owner or operator of a demolition or renovation activity,
including the
removal of RACM
as follows:
*
*
*
(2)
In a facility being demolished,
only the 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
(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.
*
*
*
(b)
Notification requirements.
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
4
Service,
commercial delivery service,
or hand
delivery is
acceptable.
(2)
Update notice,
as
necessary,
including when the amount of
asbestos affected
changes
by at
least 20
percent.
(3)
Postmark or deliver the notice as follows:
(i)
*
*
*
If the operation is as described
in
paragraph (a)(2)
of this section,
notification
is required
10 working
days
before demolition begins.
*
*
*
(iv)
*
*
*
for a demolition described
in paragraph (a)(2)
of this
section,
that will begin
on a date
other than the one
contained
in the original
notice,
notice of the
new start
date must be
provided to the Administrator
*
*
*
(4)
Include the following in the notice:
(i)
An
indication of whether the notice is the original or a
revised
notification.
(ii)
Name,
address,
and telephone number of both the facility
owner
and operator and the asbestos
removal contractor
owner or operator.
(iii)
Type of operation:
demolition or renovation.
(iv)
Description of the facility or affected part of the facility
including the size (square meters square
feet
and
number of floors), age,
and
present and
prior use of the
facility.
(v)
Procedure, including
analytical
methods,
employed
to
detect the presence of RACM and
Category
I
and
Category
II
nonfriable
ACM.
(vi)
Estimate of the approximate
amount of RACM to
be
removed
from the facility
in terms of length of pipe
in linear
meters (linear feet),
surface area
in square meters (square
feet) on
other facility components, or volume in
cubic
meters (cubic feet)
if off the facility components.
Also,
estimate
the approximate amount of Category
I
and
Category II
nonfriable ACM
in the affected part of the
facility that will not be
removed
before demolition.
(vii)
Location and street address
(including building
number or
name and floor or room number,
if appropriate),
city,
5
county, and
state,
of the facility being
demolished
or
renovated.
*.
*
*
(ix)
Scheduled starting and
completion
dates of demolition or
renovation.
*
*
*
(xvi)
For facilities described
in
paragraph (a)(3)
of this section,
the name, title,
and
authority of the State or local
government representative who has ordered the
demolition,
the date that the order was
issued,
and the
date on which the demolition was ordered
to
begin. A copy
of the order shall
be attached
to the notification.
.*
*
*
16.
Each of the Respondents, JAMES ZELLER, THOMAS ZELLER, and
MATTHEW
SHORT, was an “operator”
of a “demolition,” andthe building
was a “facility,” as the terms are
defined at 40
CFR §61.141.
17.
The transite
removed during the demolition was a cementitious material
containing asbestos
ranging from
18
to
21
that, when dry,
cannot
be crumbled,
pulverized,
or reduced
to powder by hand
pressure,
and
therefore considered as Category
II
nonfriable
ACM.
18.
Although an
operator of a demolition
is required
by 40
CFR §61.145(b)(2) to
provide written advance notification, the Respondents did
not provide written
notification to
the
Illinois
EPA prior to
the demolition of the facility thereby violating
40
CFR §61.145(b)(2) and
Section 9.1(d)(1)
of the Act, 415
ILCS 5/9.1(d) (2002).
PRAYER
FOR RELIEF
WHEREFORE,
the Complainant,
People of the State of Illinois, respectfully requests
that this Board
enter an
Order against the Respondents,
JAMES ZELLER, THOMAS
ZELLER,
and
MATTHEW SHORT,
as follows:
6
A.
Authorizing
a hearing
in this matter at which time the Respondents will be
required to
answer the allegations
herein;
B.
Finding that the Respondents have violated the Act and
regulations as
alleged
herein;
C.
Ordering
Respondents
to cease
and desist from
any further violations of the Act
and
associated
regulations;
D.
Pursuant to Section
42(a) of the Act, 415
ILCS 5/42(a)
(2002),
impose
a civil
penalty of not more
than the statutory maximum;
E.
Pursuant to
Section 42(f) of the Act, 415
ILCS 5/42(f) (2002),
award the
Complainant its
costs
in this matter,
including
reasonable attorney’s fees
and
costs;
and
F.
Grant such
other and further relief as the
Board
deems appropriate.
COUNT
II
WORK PRACTICES VIOLATIONS
1-16.
Complainant realleges and
incorporates
herein by reference paragraphs
1
through
16
of Count las
paragraphs
1
through
16
of this Count
II.
17.
The transite removed
during the demolition and
subsequently crushed
at the site
was
a cementitious
material
containing asbestos
ranging from
18
to 21
and therefore
considered
as 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 the demolition.
19.
40 CFR §61.145(c) provides
procedures
and work practice standard for asbestos
emission control.
According to
40
CFR §61 .145(c)(1)(iv),
Category II
nonfriable ACM
need not
be
removed
prior to
demolition if the probability is
low that the materials will become crumbled,
pulverized,
or reduced to
powder during
demolition.
The definition of
RACM in 40 CFR §61.141
7
includes 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 activities.
20.
Respondents,
MATTHEW SHORT and THOMAS ZELLER, employed heavy
equipment
to
demolish the building
and to
remove the siding from the building, thereby creating
a
high probability that the transite would
become crumbled,
pulverized, or reduced
to powder.
21.
Respondents,
MATTHEW SHORT
and
THOMAS ZELLER, failed
to
remove the
transite prior to the demolition and thereby violated 40
CFR §61.145(c)(1)
and
Section
9.1(d) of
the Act, 415
ILCS 5/9.1(d)
(2002).
PRAYER
FOR RELIEF
WHEREFORE,
the
Complainant,
People of
the
State
of Illinois,
respectfully requests
that this Board enter an
Order against the Respondents, THOMAS ZELLER
and
MATTHEW
SHORT, asfollows:
A.
Authorizing
a
hearing
in this matter
at which time the Respondents will
be
required
to answer the allegations .herein;
B.
Finding that the Respondents
have violated the Act and
regulations
as alleged
herein;
C.
Ordering
Respondents
to
cease
and desist from
any further violations
of the Act
and
associated
regulations;
D.
Pursuant
to Section
42(a)
of
the Act, 415 ILCS
5/42(a)
(2002),
impose a civil
penalty of not more than
the statutory maximum;
E.
Pursuant to
Section
42(f) of the Act, 415
ILCS 5/42(f)
(2002),
award the
Complainant its costs
in this matter,
including
reasonable attorney’s fees
and
costs;
and
8
F.
Grant such other and further relief as
the
Board deems
appropriate.
Respectfullysubmitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
AttorneyGeneral of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:___________________
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney
General
Of counsel:
RAYMOND CALLERY
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated:
November
19, 2004
9
