ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL HISTORY
BACKGROUND
STATUTORY AND REGULATORY PROVISIONS

September 15, 2005

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

PATTISON ASSOCIATES LLC, an Illinois

limited liability company, and 5701

SOUTH CALUMET L.L.C., an Illinois

limited liability company,

ORDER OF THE BOARD (by J.P. Novak):

On April 4, 2005, the People of the State of Illinois (People) filed a five-count air

pollution complaint against respondents Pattison Associates L.L.C. (Pattison) and 5701 South

Calumet LLC (5701 Calumet) (collectively, respondents). On June 24, 2005, respondents filed a

motion to dismiss the complaint against them for failure to state a claim. 35 Ill. Adm. Code

101.500(a); 735 ILCS 5/2-615 (2004). The complaint concerns renovation activities conducted

by Pattison at an apartment complex owned by 5701 Calumet in Chicago, Cook County. For the

reasons set forth below, the Board denies respondents’ motion to dismiss and directs respondents

to file an answer on or before October 17, 2005.

PROCEDURAL HISTORY

On April 4, 2005, the People filed a five-count complaint (Comp.) against respondents.

See

415 ILCS 5/31 (2004). The People allege that respondents, in the course of renovating a

Chicago apartment complex, failed to inspect that complex thoroughly for the presence of

asbestos. The People further allege that respondents failed to submit required notice of their

renovation, to follow proper emission control procedures, and to follow proper disposal

procedures. The People further allege that respondents’ activities caused, threatened or allowed

the discharge of asbestos into the environment so as to cause air pollution. Specifically, the

People allege that respondents violated Sections 9(a) and 9.1(d)(1) of the Environmental

Protection Act (Act), Sections 61.145(a), 61.145(b)(1), 61.145(c)(1), 61.145(c)(3), 61.145(c)(6),

61.145(c)(8), and 61.150(b)(1) of Title 40 of the Code of Federal Regulations, and Section

201.141 of the Board’s regulations. 415 ILCS 5/9(a), 9(d)(1) (2004); 40 C.F.R. 61.145(a),

61.145(b)(1), 61.145(c)(1), 61.145(c)(3), 61.145(c)(6), 61.145(c)(8), and 61.150(b)(1); 35 Ill.

Adm. Code 201.141.

On June 1, 2005, counsel for respondents filed a proposed agreed order granting an

extension of the deadline to file an answer to June 17, 2005. On June 2, 2005, Board Hearing

Officer Bradley P. Halloran granted that extension. On June 15, 2005, counsel for respondents

filed a proposed agreed order granting an extension of the deadline to file an answer to June 24,

2005. On June 16, 2005, Hearing Officer Halloran granted that extension.

On June 24, 2005, respondents filed a motion to dismiss (Mot.) the five counts in the

complaint. On July 5, 2005, counsel for the People filed a proposed agreed motion for an

extension of the deadline to respond to the motion to dismiss to July 22, 2005. On July 6, 2005,

Hearing Officer Halloran granted that request. On July 22, 2005, the People filed their response

(Resp.) to the motion to dismiss the five counts of the complaint.

BACKGROUND

At the time the complaint was filed, respondent 5701 Calumet was an Illinois limited

liability company in good standing and owned an 18-unit apartment complex located at the site.

Comp. at 2. At the time the complaint was filed, respondent Pattison was an Illinois limited

liability company in good standing and was the contractor hired to conduct renovation activities

in the 18-unit apartment complex located at the site.

On October 15, 2003, the Agency inspected the site after an interior demolition had

occurred there. Comp. at 3. The apartment complex had not been inspected before the

renovation activities took place.

. During that inspection, the inspector observed disturbed

suspect material on the floor and suspect material on approximately twelve linear feet of pipes

leading from a boiler in the basement of the site.

. The inspector measured where

approximately 350 feet of linear piping had been removed from the basement of the site.

Also on October 15, 2003, a sample of dry friable suspect material found in the basement boiler

room tested positive for 20% chrysotile asbestos.

. Also on October 15, 2003, a sample of dry

friable suspect material obtained from a pipe above a boiler tested positive for 10% chrysotile

asbestos.

. On October 21, 2003, two microvacuum samplings taken at the site showed

elevated levels of asbestos fibers in the basement of the site.

STATUTORY AND REGULATORY PROVISIONS

Section 9(a) of the Act provides that “[n]o person shall cause or threaten or allow the

discharge or emission of any contaminant into the environment in 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.

415 ILCS 5/9(a) (2004).

Section 9.1(d)(1) of the Act provides “[n]o person shall violate any provisions of Section

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)(1) (2004).

Section 61.145(a) of Title 40 of the Code of Federal Regulations provides in pertinent

part 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 at least 15 square meters (160 square feet) on

other facility components . . . . 40 C.F.R. 61.145(a).

Section 61.145(b)(1) of Title 40 of the Code of Federal Regulations provides:

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

Service, commercial delivery service, or hand delivery is

acceptable. 40 C.F.R. 61.145(b)(1).

Section 61.145(c) of Title 40 of the Code of Federal Regulations provides in pertinent

part:

Each owner or operator of a demolition or renovation 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 . . . .

* * *

(3)

When RACM is stripped from a facility component while it

remains in place in the facility, adequately wet the RACM

during the stripping operation.

* * *

(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; . . .

* * *

(8)

Effective 1 year after promulgation of this regulation, no

RACM shall be stripped, removed, or otherwise handled or

disturbed at a facility regulated by this section unless at

least one onsite representative, such as a foreman or

management-level person or other authorized

representative, trained in the provisions of this regulation

and the means of complying with them, is present . . . . 61

C.F.R. 61.145(c).

Section 61.150(b)(1) of Title 40 of the Code of Federal Regulations

provides in pertinent part:

Each owner or operator of any source covered under the provisions of §§61.144,

61.145, 61.146, and 61.147 shall comply with the following provisions:

* * *

(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 Section 61.154 . . . . 40 C.F.R.

61.150(b)(1).

Section 201.141 of the Board’s air pollution regulations provides:

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. 35 Ill. Adm. Code 201.141.

STANDARD OF REVIEW

For purposes of ruling on a motion to dismiss, all well-pled facts contained in the

pleading must be taken as true, and all inferences from them must be drawn in favor of the non-

movant.

People v. Stein Steel Mills Services, Inc., PCB 02-1 (Nov. 15, 2001). A complaint

should not be dismissed for failure to state a claim unless it clearly appears that no set of facts

could be proven under the pleadings that would entitle the complainant to relief.

Shelton v.

Crown, PCB 96-53 (May 2, 1996).

COUNT I: AIR POLLUTION

Summary of Violation Alleged

Count I of the complaint alleges that the respondents caused or allowed air pollution in

violation of Section 9(a) of the Act and Section 201.141 of the Board’s air regulations “by

allowing dry friable asbestos containing materials to remain in a friable state, exposed to the

elements.” Comp. at 6;

see

415 ILCS 5/9(a) (2004); 35 Ill. Adm. Code 201.141. The People

state that the Agency inspected the site on October 15, 2003, after an interior demolition had

been performed there. Comp. at 3.

The People state that the Agency inspector observed suspect material on the floor and

along 12 linear feet of pipes leading from a boiler in the basement area of the site. Comp. at 3.

The People report that, on October 15, 2003, a sample of suspect material obtained from the

northeast part of the boiler room in the basement of the site tested positive for 20% chrysotile

asbestos and that a sample obtained from a pipe above the boiler tested positive for 10%

chrysotile asbestos.

. The People explain that, on October 15, 2003, the Agency inspector

measured where approximately 350 feet of linear piping had been removed, leaving twelve feet

of linear piping intact in the basement of the site.

. The People further state that two

microvacuum samplings taken at the site on October 21, 2003, showed elevated levels of

asbestos fibers in the basement of the site.

. The People contend that respondents, as owner

and renovator, caused or allowed friable ACM to be deposited uncontained throughout the

basement of the site. Comp. at 4. The People allege that this improper handling of the ACM and

failure to follow emission control procedures caused or allowed the release of asbestos fibers to

the atmosphere.

Respondents’ Motion to Dismiss Count I

Respondents argue generally, pursuant to Section 2-615 of the Illinois Code of Civil

Procedure, that Counts I-V fail to state a claim and should be dismissed. Mot. at 1;

see

735 ILCS

5/2-615 (2004). Respondents further argue that, “although a court will liberally construe

pleadings, the complaint still must allege facts sufficient to state a cause of action.” Mot. at 1,

citing

Premier Electrical Construction Co. v. City of Chicago, 512 N.E.2d 44, 47 (1st Dist

1987).

Respondents argue that the People “filed this Complaint more to engage in a discovery

fishing expedition than to inform Pattison of its alleged wrongdoing.” Mot. at 3. Respondents

state that the People have “not pled that Pattison caused air pollution, and indeed no such

allegation can be made because none of the tests cited in the Complaint sampled the air.” Mot. at

2. Respondents state that the complaint refers first to a test of the asbestos material itself and

second to microvacuum sampling that tests non-airborne dust.

. (referring to ASTM Standard

D5755-03). Respondents argue that “[t]here is no factual allegation that the asbestos entered the

‘atmosphere,’ let alone existed in ‘sufficient quantities’ and of such ‘characteristics and duration

as to be injurious’” so as to constitute “air pollution” under the Act. Mot. at 2;

see

415 ILCS

5/3.115 (2004). Respondents characterize the complaint as alleging “simply that friable asbestos

was seen on the property.” Mot. at 2. Pattison thus claims that it is unable to determine from the

complaint whether it is alleged to have removed asbestos and, if so, to determine the manner,

time, and quantity of the alleged removal.

See id

People’s Response to Motion to Dismiss Count I

The People argue generally that respondents’ motion to dismiss should be denied and that

respondents should be directed to file an answer addressing the substance of the complaint.

Resp. at 5-6. Acknowledging that the complaint must allege facts bringing the case within the

stated cause of action, the People state that “the plaintiff is not required to set out evidence; only

the ultimate facts to be proved should be alleged, not the evidentiary facts tending to prove such

ultimate facts.” Resp. at 2, citing

City of Chicago v. Beretta U.S.A. Corp., 821 N.E. 2d 1099,

1113 (2004). In addition, the People argue that, “[i]n determining whether a complaint states

facts or conclusions, the complaint must be considered as a whole and not in its disconnected

parts.” Resp. at 2, citing

Courtney v. Board of Education of the City of Chicago, 286 N.E.2d 25,

26 (1st Dist. 1972).

The People note their burden of proving that the respondents “caused or

threatened to

cause

the discharge of asbestos into the environment so as to cause or

tend to cause

air

pollution.” Resp. at 3, citing 415 ILCS 5/9(a) (2002) and 35 Ill. Adm. Code 201.141 (2002)

(emphasis in original). In the Complaint, the People allege that improper handling and

containment of ACM throughout the basement of the site “allowed asbestos fibers to be released

to the atmosphere.” Resp. at 3, citing Comp. at 4 (¶ 13). The People further argue that they

identify asbestos in a friable state and exposed to the elements. Resp. at 3. The People contend

that this exposure threatened the discharge of asbestos into the atmosphere, causing or allowing

pollution. Resp. at 3, citing Comp. at 6 (¶ 26). Having alleged that “asbestos is a known human

carcinogen” (Comp. at 4), the People argue that they have provided “specific notice as to the

alleged violations, including the nature of the contaminant (asbestos), the time frame and the

location.” Resp. at 4.

Referring to the case as one of the few that distinguishes pleading from proving this

alleged violation, the People cite

Ralston Purina Co. v. IPCB, 325 N.E.2d 727 (4th Dist. 1975).

In that case, the complainant alleged that the respondent “operated its plant since the specified

date so as to cause, threaten, or allow the discharge or emission of fly ash and other contaminants

into the environment so as to cause, or tend to cause, air pollution. . .” in violation of Section 9(a)

of the Act. Resp. at 4, citing

Ralston Purina Co., 325 N.E.2d at 729;

see

415 ILCS 5/9(a) (2004).

Although the company argued that the allegations brought before the Board were not sufficiently

specific, the court stated that “[c]learly, in this case, Ralston was put upon specific notice as to its

alleged violation.” Resp. at 4, citing

Ralston Purina Co., 325 N.E.2d at 729. The People argue

that respondents appear to be improperly denying the allegations in a motion to dismiss instead

of properly denying them in an answer. Resp. at 3-4.

Board Discussion of Count I

Count I of the complaint alleges that respondent 5701 Calumet was and is the owner of

the 18-unit apartment complex located on the site. Comp. at 2. The People have further alleged

that respondent Pattison was and is the contractor hired to conduct renovation activities at the

site.

. The People have further alleged, on the basis of an October 15, 2003 inspection after an

interior demolition had been performed, that friable ACM was present both in the basement and

on pipes at the site. Comp. at 3. The People further allege that asbestos is a contaminant under

the Act. Comp. at 5,

see

415 ILCS 5/3.165 (2004). The People have further alleged that the

friable ACM at the site had been improperly handled and exposed to the elements, causing or

allowing air pollution in violation of Section 9(a) of the Act and Section 201.141 of the Board’s

air regulation. Comp. at 6;

see

415 ILCS 5/9(a) (2004); 35 Ill. Adm. Code 201.141. After

reviewing the language of the complaint and the Act, the Board cannot conclude that no set of

facts could be proven under the allegations in count I of the complaint that would entitle the

People to relief. Accordingly, the Board denies respondents’ motion to dismiss count I.

COUNTS II-IV: FAILURE TO INSPECT, SUBMIT NOTIFICATION, AND FOLLOW

EMISSION CONTROL PROCEDURES

Summary of Violations Alleged

Count II of the complaint alleges that the “[r]espondents, as owners and/or operators of a

renovation activity, failed to thoroughly inspect the apartment complex for the presence of

asbestos prior to commencement of renovation activities or at any time”, thus violating Section

9.1(d)(1) of the Act and federal asbestos regulations. Comp. at 11;

see

415 ILCS 5/9.1(d)(1)

(2004); 40 C.F.R. 61.145(a).

Count III of the complaint alleges that “[r]espondents, as owners and/or operators of a

renovation activity, failed to notify the Administrator of their intent to demolish or renovate,”

thus violating Section 9.1(d)(1) of the Act and federal asbestos regulations. Comp. at 13;

see

415 ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.145(b)(1).

Count IV of the complaint alleges that respondents failed to follow proper asbestos

emission control practices. Specifically, the complaint alleges that “[r]espondents, as owners

and/or operators of a renovation activity, failed to have any onsite representative trained in the

provisions of the asbestos NESHAP,” thus violating Section 9.1(d)(1) of the Act and federal

asbestos regulations. Comp. at 16;

see

415 ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.145(c)(8).

Count IV also alleges that “[r]espondents, as owners and/or operators of a renovation activity,

failed to adequately wet all RACM and ensure that it remained wet until collected and contained

or treated in preparation for disposal,” thus violating Section 9.1(d)(1) of the Act and federal

asbestos regulations. Comp. at 16;

see

415 ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.145(c)(6)(i).

Count IV goes onto allege that [r]espondents, as owners and/or operators of a renovation activity,

failed to adequately wet all RACM in place before stripping it from the facility components at

the facility,” thus violating Section 9.1(d)(1) of the Act and federal asbestos regulations. Comp.

at 16;

see

415 ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.145(c)(3). Count IV further contends that

“[r]espondents, as owners and/or operators of a renovation activity, failed to remove all RACM

from a facility being renovated or demolished before an activity began that would break up,

dislodge, or similarly disturb the material or preclude access for subsequent removal,” thus

violating Section 9.1(d)(1) of the Act and federal asbestos regulations. Comp. at 15;

see

415

ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.145(c)(1).

Respondents’ Motion to Dismiss Counts II-IV

Respondents emphasize that demolition and renovation standards apply only when

specified quantities of RACM are “to be

cut

.” Mot. at 3, citing 40 C.F.R. 61.145(a)(4) (emphasis in original). Respondents argue

that “[t]he Complaint does not even allege that Pattison engaged in any handling of asbestos

anywhere in the building.” Mot. at 3. Respondents further argue that the People have not

alleged that Pattison in the basement of the building performed any of the acts listed in the

language of the demolition and renovation standards.

People’s Response to Motion to Dismiss Counts II-IV

The People dispute respondents’ claim that the complaint fails to present evidence that

they have “stripped, removed, dislodged, cut, drilled, or similarly disturbed asbestos. . . .” Resp.

at 4, citing Mot. at 3, 10 (¶¶ 6-12, 25-28). The People argue that, “[a]s owners/operators of the

building undergoing demolition and reconstruction, the Respondents are liable for the exposed

asbestos in the building.” Resp. at 4. The People have alleged that, while respondents

performed renovation activities at the site, inspection showed “disturbed suspect material” both

on the floor and remaining on pipes. Comp. at 7 (incorporating allegations from count I).

Furthermore, the People argue that, “where facts of necessity are within the defendant’s

knowledge and not within plaintiff’s knowledge, a complaint which is as complete as the nature

of the case allows is sufficient.” Resp. at 5, citing

Yuretich v. Sole, 631 N.E.2d 769, 769-70 (4th

Dist. 1994). The People further argue that their complaint is as complete as the case allows

because the details of the renovation of the site are now known solely by the respondents. Resp.

at 5. The People state that they have “alleged facts within [their] knowledge or that can be

inferred from the circumstances.”

In addition, the People argue that respondents “are contending that they are not

responsible for the removal of any of the asbestos, which is a dispute of material fact.” Resp. at

5. The People further argue that this motion to dismiss is not the proper means of obtaining

judgment on the resolution of a factual issue.

Board Discussion of Counts II-IV

Counts II-IV of the complaint allege that respondents were “owner or operator of a

demolition activity” under 40 C.F.R.61.141. That provision defines those terms in part as

persons owning, operating, controlling, or supervising the facility being demolished or renovated

or the demolition or renovation operation. Comp. at 9-10;

see

40 C.F.R. 61.141. The People

further allege that, at the time of an October 15, 2003 inspection, interior demolition had

occurred at the site. Comp. at 3. The People further allege that the site contained ACM both in

the basement and on pipes at the site.

. After reviewing the language of the complaint, the

Board cannot conclude that no set of facts could be proven that would entitle the People to relief

under counts II-IV of the complaint alleging failure to inspect, notify, and follow proper

emission control procedures. Accordingly, the Board denies respondents’ motion to dismiss

counts II-IV.

COUNT V: FAILURE TO FOLLOW DISPOSAL PROCEDURES

Summary of Violation Alleged

Count V of the complaint alleges that respondents failed to follow proper disposal

procedures. Specifically, the complaint alleges that “[r]espondents failed to deposit regulated

asbestos-containing waste material as soon as practical in an appropriate waste disposal site,”

thus violating Section 9.1(d)(1) of the Act and federal asbestos regulations. Comp. at 18,

see

415

ILCS 5/9.1(d)(1) (2004); 40 C.F.R. 61.150(b)(1).

Respondents’ Motion to Dismiss Count V

Respondents state that the waste disposal requirements referred to in the complaint apply

only to owners or operators described in four sections of the federal regulations. Section 61.145

applies to demolition and renovation activities, and respondents argued above that they have not

conducted those activities as they are defined. Mot. at 3-4. Section 61.144, 61.146, and 61.147

apply to manufacturing, spray application, and fabricating operations, respectively, and

respondents argue that there is “absolutely no allegation or evidence” that Pattison engaged in

those activities. Mot. at 4. Consequently, respondents argue that Count V also fails to plead

sufficient acts and should be dismissed.

Petitioner’s Response to Motion to Dismiss Count V

Respondents have argued that the waste disposal allegation in this count does not apply to

them because the People have failed to allege activities associated with demolition or renovation.

See

Resp. at 3-4 (§ 7). The People argue that they have specifically alleged that respondents are

owner/operators of the site. Resp. at 5, citing Comp. at 2 (§§ 4-5). The People further argue that

they have alleged that demolition and renovation are taking place or have taken place at the site.

Resp. at 5, citing Comp. at 5-6 (§§ 24-25).

The People also argue that respondents in their response to this count raise a factual issue

that is not properly addressed in a motion to dismiss.

See

Resp. at 5.

Board Discussion of Count V

Count V of the complaint alleges that respondents are either owner or operator of a

demolition activity, making them subject to asbestos waste disposal requirements. Comp. at 2,

18. The People have further alleged that, as owner or operator, respondents failed to deposit

asbestos-containing waste material as soon as practical at an appropriate site. Comp. at 18.

After reviewing the language of the complaint, the Board cannot conclude that no set of facts

could be proven that would entitle the People to relief under count V of the complaint alleging

failure to follow proper disposal procedures. Accordingly, the Board denies respondents’ motion

to dismiss count V.

CONCLUSION

For the reasons above, the Board denies the respondents’ motion to dismiss. A timely

filed motion to dismiss under Section 103.212(b) or 101.506 stays the 60-day period to file an

answer. 35 Ill. Adm. Code 103.204(e). Both sections require respondents to file the motion

within 30 days of the date it is served with the complaint. Because they were granted motions

for extension of that 30-day period, respondents’ motion to dismiss filed June 24, 2005 was

timely under Section 101.506 of the Board’s procedural rules. Thus, the motion to dismiss

stayed the 60-day period to file an answer.

See

35 Ill. Adm. Code 103.204(e). The stay is lifted

as of the date of this order, and respondents have until October 17, 2005, or 30 days from the

date of this order, to answer the complaint.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on September 15, 2005, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board