BEFORE THE ILLINOIS POLLUTION CONTROL BOA~~C~VED

CLERK’S OFRCE

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. 

LISA MADIGAN, Attorney

General of the State of Illinois,

Complainant,

MARC REALTY, INC., an Illinois

corporation, 55 E. JACKSON LLC,

a Delaware Limited Liability

Company

Respondents.

NOV 3 ~2U0’i

STATE OF ILUNOIS

Pollution Control Board

PCB 05—

(EnforceI~ent-Air)

TO: See Attached Service List

NOTICE OF 

FILING

PLEASE TAKE NOTICE that on November 30, 2004, we filed with the

Illinois Pollution Control Board a Complaint, a true and correct copy

of which is attached and hereby 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 the 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,

the Clerk’s Office or an attorney.

Financing to correct the violations alleged may be available

through the Illinois Environmental Facilities Financing Act 20 ILCS

3515/1, et 

seq.

BY

Respectfully submitted,

Christ~~ 

£.

~rzan

Assistant(..Att.e~eyGeneral

Environmental •Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-3532

LISA MADIGAN

Attorney General

State

SERVICE LIST

Marc Realty, Inc.

55 E. Jackson LLC

c/o Allen B. Glass, Registered Agent

200 W. Jackson, Suite 1200

Chicago, Illinois 60606

Mr. William D. Seith, Esq.

631 E. Butterfield Road, Suite 315

Lombard, Illinois 60148

RECE~.VED

BEFORE THE ILLINOIS POLLUTION CONTROL B~~K’SOFFICE

PEOPLE OF THE STATE OF ILLINOIS,  

)

NOV30 2004

ex

rel. 

LISA MADIGAN, Attorney

General of the State of Illinois,        

p~i~o~~ontrolBoard

Complainant,

PCB 05-

(Enforcement-Air)

MARC REALTY, INC., an Illinois

corporation, 55 E. JACKSON LLC,

a Delaware Limited Liability

Company

Respondents.

COMPLAINT

Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, complains of

Respondents, MARC REALTY, INC. and 55 E. JACKSON LLC, as follows:

COUNT I

AIR POLLUTION

1.  This Complaint is brought by the Attorney General

against Marc Realty, Inc. on her own motion and upon the request of

the Illinois Environmental Protection Agency (“Illinois EPA”) and

against 55 E. Jackson LLC on her own motion, 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 administrative agency of the

State of Illinois, created pursuant to Section 4 of the Act, 415

ILCS 5/4 (2002), and charged, 

inter alia, 

with the duty of

enforcing the Act.

3.  Respondent, Marc Realty, Inc. (“Marc Realty”), is an

Illinois corporation and is headquartered at 200 W. Jackson St.,

Chicago, Illinois 60606.

4.  Respondent, 55 E. Jackson LLC, is a Delaware limited

liability company.

5.  Marc Realty is the operator and manager of a sixteen

floor office building located at 55 E. Jackson Street, Chicago,

Cook County, Illinois (“Jackson Street building”) 

Marc Realty

manages the property and leases space within it to various tenants

for use as office space. The majority of the building was occupied

by tenants at all times relevant to this complaint.

6.  55 E. Jackson LLC, is the owner of the Jackson Street

Building.

7.  In July 2003, Marc Realty and 55 E. Jackson LLC were

engaged in the renovation of the fifteenth floor of the Jackson

Street building.

8.  The Respondents contracted with and/or arranged for a

limited asbestos abatement of the fifteenth floor as part of the

renovation. The Respondents also contracted with a general

contractor to supervise the non-asbestos renovation activitie~, who

in turn retained subcontractors to perform various renovation

activities.

9.  The fifteenth floor of the Jackson Street building,

including the approximately 20,500 square foot renovation area,

contained spray-on fireproof ing and ceiling tile that contained

asbestos.

10. After the limited abatement and under direction of the

2

Respondents or their agent, the contractors hired to renovate the

15th floor performed activities proximate to the ceiling area,

which was still largely covered with dry, friable spray-on.

fireproof ing. The renovation activities performed by the

contractors disturbed dry, friable asbestos containing material.

11. On July 25, 2003 a garbage bag located in the renovation

area contained dry, friable spray-on fireproofing composed of 40

chrysotile asbestos.

12. Also on July 25, 2003, one of four similar piles of dry,

friable debris located at the renovation area contained materials

of 35- chrysotile asbestos.

13. Three microvac samples taken at various parts of the

fifteenth floor on July 25, 2003 indicated the presence of asbestos

at levels ranging from 36,060 to 857,427 structures per square

centimeter.

14. When managed as alleged above, asbestos fibers can and

will become airborne such that persons may inhale the fibers.

15. Section 9(a) of the Act, 415 ILCS 5/9(a) (2002),

provides as follows:

No person shall:

a.  Cause, threaten or allow the discharge or emission

of any contaminant into the environment of any

state so as to cause or tend to cause air pollution

in Illinois, either alone or in combination with

contaminants from other sources, or so as to

violate regulations or standards adopted by the

Board under this Act;

16. Sec?ion 3.315 of the Act, 415 ILCS 5/3.315 (2002),

3

provides the following definition:

“PERSON” is’any individual, partnership, co-partnership,

firm company, limited liability company, corporation,

association, joint stock company, trust, estate,

political subdivision, state agency, or any other legal

entity, or their legal representative, agent or assigns.

17. Marc Realty and 55 E. Jackson LLC each constitute a

“person” as that term is defined in Section 3.315 of the Act, 415

ILCS 5/3.315 (2002)

18. Section 3.165 of the Act, 415 ILCS 5/3.165 (2002),

provides the following definition:

“CONTAIVIINANT” is any solid, liquid, or gaseous matter,

any odor, or any form of energy from whatever source.

19. Section 201.102 of the Illinois Pollution Control Board

Air Pollution Regulations (“Board regulations”), 35 Ill. Adm. Code

201.102, provides the following definition:

“Air Pollution”: the presence in the atmosphere of one

or more air contaminants in sufficient quantities and of

such characteristics and duration as to be injurious to

human, plant or animal life, to health, or to property,

or to unreasonably interfere with the enjoyment of life

or property.

20. Section 201.141 of the Board regulations, 35 Ill. Adm.

Code 201.141, provides as follows:

No person shall cause or threaten or allow the discharge

or emission of any contaminant into the environment in

any State so as, either alone or in combination with

contaminants from other sources, to cause or tend to

cause air pollution in Illinois, or so as to violate the

provisions of this Chapter, or so as to prevent the

attainment or maintenance of any applicable ambient air’

quality standard.

21. Asbestos is a contaminant as defined in Section 3.165 of

the Act, 415 ILCS 5/3.165 (2002)

4

22. Asbestos is a known human carcinogen and can be

injurious to human health when inhaled.

23. The emission of asbestos as alleged constituted air

pollution.

24. From at least July 25, 2003 until the Respondents

performed a cleanup of the renovation area Respondents, by their

actions as alleged herein, violated of Section 9(a) of the Act, 415

ILCS 5/9(a) (2002) and 35 Ill. Adm. Code 201.141:

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order for Complainant

and against Respondents with respect to this Count I:

1.  Authorizing a hearing in this matter at which time the

Respondent will be required to answer the allegations alleged

herein;

2.  Finding that Respondents wilfully, knowingly and

repeatedly violated Section 9(a) of the Act, 415 ILCS 5/9 (a) (2002),

and 35 Ill. Adm. Code 201.141;

3.  Ordering Respondents to cease and desist from further

violations of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002), 35

Ill. Adm. Code 201.141;

4.  Assessing against Respondents a civil penalty of Fifty

Thousand Dollars ($50,000.00) for each violation of the Act, and

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars ($10,000.00) for each and every day of

violation;

5

5.  Ordering Respondents to pay all costs including

attorney, expert witness and consultant fees expended by the State

in pursuit of this action; and

6.  Granting such additional relief as the Board deems

appropriate and just.

COUNT II

FAILURE TO COMPLY WITH

NATIONAL EMISSIONS STA1’IDARDS FOR

HAZARDOUS AIR POLLUTANTS

1.

16. Complainant realleges and incorporates by reference

herein paragraphs 1 through 14 and 16 through 17 of Count I as

paragraphs 1 through 16 of Count II.

17. Section 9.1 of the Act, 415 ILCS 5/9.1(2002), provides,

in pertinent part, as follows:

(b) The provisions of Section 111 of the

federal Clean Air Act (42 USC 7411), as

amended, relating to standards of

performance for new stationary sources,

and Section 112 of the federal Clean Air

Act (42 USC 7412), as amended, relating

to the establishment of national emission

standards for hazardous air pollutants

are applicable in this State and are

enforceable under this Act.

***

(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 the federal regulations

adopted pursuant thereto;

18. Subpart M of part 61, Title 40 of the Code of Federal

Regulations (“C.F.R.”) was adopted pursuant to the Section 112 of

6

the Clean Air Act as part of the National Emissions Standards for

Hazardous Air Pollutants (“NESHAP”) and promulgated the National

Emission Standard for Asbestos and is enforceable in the State of

Illinois pursuant to Section 9.1 of the Act, 415 ILCS 5/9.1 (2002)

19. 40 C.F.R. § 61.141 (2002)provides the following

pertinent definitions:

Asbestos 

means the asbestiform varieties of serpentinite

(chrysotile), reibeckite (crocidolite),

cummingtonitegrunerite, anthophyllite, and actinolite-

tremolite.

Asbestos-containing waste materials 

means mill tailings

or any waste that contains commercial asbestos and is

generated by a source subject to the provisions of this

subpart. This term includes filters from control

devices, friable asbestos waste material, and bags or

other similar packaging contaminated with commercial

asbestos. As applied to demolition and renovation

operations, this term also includes regulated asbestos-

constraining material waste and materials

Category I nonfriable asbestos containing material 

(ACM)

means asbestos-containing packings, gaskets, resilient

floor covering, and asphalt roofing products continuing

more than 1~percent asbestos as determined using the

method specified in appendix E, subpart E, 40 CFR 763,

section 1, 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,

s~ection1, Polari~edLight Microscopy that, when dry,

cannot be crumbled, pulverized, or reduced to powder by

hand pressure.

Friable asbestos material 

means any material containing

more than 1 percent asbestos as determined using the

method specified in appendix E, subpart E, 40 CFR part

763, section 1, Polarized Light Microscopy, that, when

dry, can be crumbled, pulverized, or reduced to powder

by hand pressure

Owner

or operator of a demolition or renovation activity

7

means any person who 

owns,

leases, operates, controls,

or supervises the facility being 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 containing 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.

Renovation 

means altering a facility or one or more

facility components in any way, including stripping or

removal of RACM from a facility component. Operations

in which load-supporting structural members are wrecked

or taken out are demolitions.

20. Respondents engaged in a renovation of the fourth floor

as defined in 40 C.F.R. § 61.141 (2002)

21. Respondent Marc Realty was an operator of a renovation

activity ‘as defined in 40 C.F.R. § 61.141 (2002)

22. 55 E. Jackson LLC was the owner of a renovation activity

as defined in 40 C.F.R. § 61.141 (2002)

23. The material disturbed during the renovation contained

more than 1 per cent chrysotile asbestos.

24. The material disturbed in the course of the renovation

constituted RACM as defined in 40 C.F.R. § 61.141 (2002)

25. The RACM removed during the renovation, as well as

materials contaminated with asbestos through contact with RACM,

constituted asbestos-containing waste materials (“ACWM”) as defined

in,40 C.F.R. § 61.141 (2002).

8

26. 40 C.F.R. § 61.145 (2002) provides as follows:

(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:

***

(4) In a facility being renovated, including any

individual nonscheduled renovation operation,

all the requirements of paragraphs (b) and (c)

of this section apply if the combined amount

of RACM to be stripped, removed, dislodged,

cut, drilled, or similarly disturbed is

(i) At least 80 linear meters (260 linear

feet) on pipes or a least 15 square

meters (160 square feet) on other

facility components, or

(ii) At least 1 cubic meter (35 cubic feet)

of f facility components where the length

or area could not be measure previously.

***

(c)

Procedures for asbestos emission cOntrol. 

Each

owner or operator of a demolition activity to whom

this paragraph applies, according to paragraph (a)

of this section, shall comply with the following

procedures:

(1) Remove all RACM from a facility being

demolished or renovated before any activity

begins that would break up, dislodge, or

similarly disturb the material or preclude

access to the material for subsequent removal.

***

9

(6) For all RACM, including material that has been

removed or stripped:

(i) Adequately wet the material and ensure

that it remains wet until collected and

contained or treated in preparation for

disposal in accordance with § 61.150; and

(ii) Carefully lower the material to the

ground and floor, not dropping, throwing,

sliding, or otherwise damaging or

disturbing the material.

***

27.

40 C.F.R. § 61.150(b) (2002)provides, in pertinent part,

as follows:

***

(b) All asbestos-containing waste material shall be

deposited as soon as is practical by the waste

generator at:

(1) A waste disposal site operated in accordance

with the provisions of § 61.154;

28. The amount of RACM disturbed, dislodged or removed

during the renovation exceeded 160 square feet, 260 linear feet or

35 cubic feet.

29. The Respondents failed to remove all RACM from the .area

of the Jackson Street building in which the renovation was planned

although the renovation activities would break up, dislodge or

disturb the material, in violation of 40 C..F.R. § 61.145(c) (1)

(2002) 

. ,

30. The Respondents failed to avoid disturbing the 

RACM,

failed to adequately wet the RACM and failed to ensure that the

RACM remained wet until collected and contained for disposal in

10

violation of 40 C.F.R. § 61.145(c) (6) (2002).

31. The Respondents failed to deposit the RACM generated by

the renovation at an appropriate waste disposal site in a timely

manner in violation of 4.0 C.F.R. § 61.150(b) (1) (2002)

32. Each violation of the provisions of Part 61, Subpart M,

of Title 40 of the C.F.R. cited above constitutes a violation of

Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (2002)

WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,

respectfully requests that the Board enter an order for Complainant

and against Respondents with respect to this Count II:

1.  Authorizing a hearing in this matter at which time the

Respondents will be required to answer the allegations alleged

herein;

2.  Finding that Respondents wilfully, knowingly and

repeatedly violated Section 9.1(d) of the Act and 40 C.F.R. §

61.145(c) (1) & (6) (2002); and, 40 C.F.R. § 61.150(b) (2002)

3.  Ordering Respondent to cease and desist from further

violations of Section 9.1(d) of the’Act and 40 C.F.R. §

61.145(c) (1) & (6) (2002); and, 40 C.F.R. § 61.150(b) (2002);

4.  Assessing against Respondent a civil penalty of Fifty

Thousand Dollars ($50,000.00) for each violation of the Act, and

regulations promulgated thereunder, with an additional penalty of

Ten Thousand Dollars ($10,000.00) for each and every day of

violation;

5.  Ordering Respondent to pay all costs including attorney,

11

expert witness and consultant fees expended by the State in pursuit

of this action; and

6.  Granting such additional relief as the Board deems

appropriate and just.

PEOPLE OF THE STATE OF ILLINOIS,

LISA MADIGAN

Attorney General

State of Illinois

MATTHEW J.

DUNN, Chief

Environmental Enforcement/Asbestos

Litigation Division

By:

L—~—~

RO~~’I CAZ AU, (~~f

Environmental Bureau

Assistant Attorney General

OF COUNSEL:

CHRISTOPHER P. PERZAN

Assistant Attorney General

Environmental Bureau

188 West Randolph Street, 20th Floor

Chicago, IL 60601

(312) 814-.3532

12

CERTIFICATE OF SERVICE

I, CHRISTOPHER P. PERZAN,

an Assistant Attorney General, certify

that on the 30th day of November, 2004 I caused to be served by

Registered Certified Mail, Return Receipt Requested, the foregoing

Complaint to the parties named on the attached service list, by

depositing same in postage prepaid envelopes with the United States

Postal Service located at 100 West Randolph Street, Chicago, Illinois

60601.

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