BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
-vs-
No. 04-7
4832 S. VINCENNES, L.P., an)
(Enforcement- Air)
Illinois limited partnership, and
BATTEAST CONSTRUCTION COMPANY,
INC., an Indiana corporation,
Respondents.
TO:
See Attached Service List
(VIA ELECTRONIC FILING)
NOTICE OF PILING
PLE ASE TAKE NOTICE that I have filed with the Office of the
Clerk of the Illinois Pollution Control Board by electronic
filing Complainant's Motion for Summary Judgment against
Respondent, 4832 S. Vincennes, L.F., a copy of which is attached
herewith and served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the
State of Illinois
BY:
_
_
_
_
_
_
PA ULA B3ECKER WHEELER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 2
01 Flr.
Chicago, IL 60601
(312) 814-1511
Date: October 17, 2005
THIS
FILING
IS KADE ON RECYCLED PAPER
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
SERVICE LIST
TO:
Mr. Oliver Spurlock, Esq./Mr. Gregory Miller
Attorneys for Respondent
4832 S. Vincennes, L.P.
9415 South State Street
Chicago, Il.
60619
Mr. Zachary Hamilton
Attorney for Respondent
Batteast Const. Co., Inc.
3340 E. Forest View Trail
Crete, IL.
60417
Mr. Bradley P. Halloran
Hearing Officeer
Illinois Pollution Control Board
100
W. Randolph, Room 11-500
Chicago, Il.
60601
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
CERTIFICATE OF SERVICE
I, PAULA BECKER WHEELER, an attorney, do certify that I
caused to be served this 17th day of October, 2005, the foregoing
Complainant's Motion for Summary Judgment against Respondent 4832
S. Vincennes, L.P. and Notice of Filing upon the persons listed
on the attached Service List by depositing same in an envelope,
by first class postage prepaid, with the United States Postal
Service at 188 West Randolph Street, Chicago, Illinois, at or
before the hour of 5:00 p.m.
PAULA BECKER WHEELER
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS,
Complainant,
-vs-
No.
04-7
4832 S. VINCENNES, L.P., an)
(Enforcement
-
Air)
Illinois limited partnership, and
BATTEAST CONSTRUCTION COMPANY, INC.,)
an Indiana corporation,
Respondents.
COMPLAINANT'
S
MOTION
FOR
SUMMARY
JUDGEMENT
AGAINST
RESPONDENT
4832
S.
VINCENNES.
L.P.
NOW
COMES
the
Complainant, PEOPLE OF THE
STATE
OF
ILLINOIS,
through its attorney, LISA MADIGAN, Attorney General of the State
of Illinois, and requests that the Illinois Pollution Control
Board ("Board") grant, pursuant to 35 Ill. Adm. Code 101.516,
summary judgment in favor of Complainant and against the
Respondent, 4832 S. VINCENNES. L.P., ("Vincennes")
.
In support
thereof, Complainant states as follows:
.LEGAL
STANDARD
Section 101.516 of the Board Procedural Rules, 35 Ill. Adm.
Code 101.516, provides, in pertinent part, as follows:
b)
If the record, including pleadings, depositions
and admissions on file, together with any affidavits,
show that there is no genuine issue of material fact,
and the moving party is entitled to judgment as a
matter of law, the Board will enter summary judgment.
Section 2-1005 of the Illinois Code of Civil Procedure
provides in pertinent part:
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
(a) For plaintiff. Any time after the opposite
party has appeared or after the time within
which he or she is required to appear has
expired, a plaintiff may move with or without
supporting affidavits for a summary judgment
in his or her favor for all or any part of
the relief sought.
Cc)
Procedure .
.
.
The judgment sought shall be
rendered without delay if the pleadings,
depositions, and admissions on file, together
with the affidavits, if any, show that there
is no genuine issue as to any material fact
and that the moving party is entitled to a
judgment as a matter of law.
The purpose of the summary judgment procedure is to aid in
expeditious disposition of a lawsuit. Gilbert v. Sycamore
Municipal Hospital, 156 Ill.2d 511, 622 N.E.2d 788 (1993).
The complaint, answer and discovery pleadings filed in this
cause, together with the depositions, documents and affidavits
supporting this motion, establish all material facts necessary to
prove liability against the Respondent, 4832 S. VINCENNES, L.P.,
on Counts I and II of the Complaint.
PRELIMINARY BACKGROUND
On July 14, 2003, the State filed its Complaint, on referral
from the Illinois Environmental Protection Agency pursuant to
Section 31 of the Illinois Environmental Protection Act ("Act"),
415 ILCS 5/31 (2002).
On October 6, 2003, the State filed its
First Amended Complaint in this matter, containing no changes
from the original Complaint other than re-naming the co-
-2-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
respondent, BATTEAST CONSTRUCTION COMPANY, INC., ("Batteast"),in
its correct corpdrate form, the paragraph numbering on both
Complaints remaining the same. The State alleges that Vincennes
is the owner of a renovation project in Chicago, Cook County,
Illinois, and that Batteast was the contractor hired to perform
the renovation. Allegations in the Complaint include violations
for Air Pollution and Failure to Inspect and follow the proper
emission control procedures when asbestos was discovered on the
site.
Vincennes has filed answers to the Complaint, to
Interrogatories, to a Request for Production, and to a Request to
Admit Pacts. Depositions have also been taken.
The following
essentially track the two Counts of the Amended Complaint, with
the appropriate proof of the Paragraph when necessary.
COUNT I
AIR POLLUTION
1.
This First Amended Complaint is brought on behalf of
the PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, on her own motion and at the
request of the Illinois EPA pursuant to Section 321 of the
Illinois Environmental Protection Act, 415 ILCS 5/31 (2002)
("Act").
2.
The Illinois EPA is an Administrative agency
established in the executive branch of the State government by
Section 4 of the Act, 415 ILCS 5/4 (2002)
,
and charged,
inter
alia,
with the duty of enforcing the Act.
-3-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
3.
At all times relevant to this Complaint, Respondent,
4832 S. Vincennes, L.F. ("Vincennes") was and is the owner of the
property and building located at 4832 South Vincennes Avenue,
Chicago, Cook County, Illinois ("Site")
.
The building is a
residential four story brick apartment building, containing sixty
seven(67) units. (See Vincennes Answer to Count I, par. 3 of
Complainant' s Complaint, ["Answer"])
4.
On information and belief, at all times relevant to
this Complaint, Respondent, Batteast Construction Company, Inc.,
("Batteast") was the operator and manager of the renovation of
the Site.
Batteast is an Indiana corporation, licensed to do
business in the State of Illinois. (Answer, Count I, par. 4)
5.
On or about August of 2001, or a time better known to
the Respondents, the Respondents began the renovation of the
Site. (Answer, Count I, par. 5)
6.
On or about December of 2001, or at a time better known
to the Respondents, in the course of the renovation, when
replacing the floors on the first floor, Batteast discovered
suspect asbestos-containing material("ACM") in the basement area.
(See Affidavit of Illinois EPA Inspector Joe Zappa, attached to
and incorporated into this motion as Exhibit A, [tizappa
Affidavit"]
,
the Affidavit of Margaret Guidarelli-Pelletier of
Hygieneering, Inc., and exhibits thereto, attached to and
incorporated into this motion as Exhibit B, ["H-ygieneering
-4-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Affidavit"], and also the deposition of Greg Miller, the
Vincennes representative, dated April 26, 2004, pp. 30, 63,
attached to and incorporated into this motion as Exhibit C,
["Miller 2004 Dep."]))
7.
After the discovery, Batteast contacted two asbestos
contractots to bid on the removal of 3750 linear feet of ACM
thermal system insulation, and 480 square feet of ACM surface
material on the boiler. (Answer, Count I, par. 7)
8.
After the discovery of the suspect ACM, the Respondents
continued to employ workers on the site to complete the
renovation. (See Vincennes Response to Request for Admission of
Facts, Request No. 4)
9.
On January 31, 2002, the Illinois EPA performed an
inspection of the building on the Site.
(
Zappa Affidavit)
10.
On information and belief, no asbestos contractors had
been hired by the Respondents as of January 31, 2002.
11.
On January 31, 2002, there was dry, friable suspect ACM
on the pipes and on the floor of the basement.
The suspect ACM
appeared in very poor condition and was falling off the pipes.
Demolition debris from the first floor had fallen through and
disturbed a significant amount of the suspect ACM. Various
samples from the basement area were later tested and were
positive for 55-75% chrysotile asbestos. (Zappa Affidavit)
-5-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
12.
On January 31, 2002, Vincennes refused to stop work,
and Respondent Batteast continued to work on the premises. (Zappa
Affidavit, Vincennes Response to Request for Admission of Facts,
Request No. 4, and also Miller 2004 Dep., p.66)
13.
On January 31, 2002, there were several workers at the
Site doing work in and around the first floor area. Most of the
windows and doors were open to the atmosphere. None of the
workers were wearing personal protective equipment or were
utilizing any emission control measures. (Zappa Affidavit, and
also Vincennes Response to Request for Admission of Facts,
Request No. 8)
14.
After the inspection on January 31, 2002, the City of
Chicago, which was providing some of the funding for the
renovation, was contacted. (Zappa Affidavit)
15.
On February 5, 2002, the City of Chicago issued a stop
work order and the renovation work ceased at the site. (Answer,
Count I, par. 15)
16.
On February 14, 2002, an approved asbestos abatement
and remediation plan commenced, and was completed on February 19,
2002. (Answer, Count I, par. 16)
17.
The total amount of ACM removed was 2400 linear feet of
disturbed ACM, and 6000 square feet of ACM tiles. (Answer, Count
I, par. 17)
-6-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
18.
Section 9(a) of the Act, 415 ILCS 5/9(a) (2002),
provides as follows:
No person shall:
a.
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;
19.
Section 201.141 of the Board's Air Pollution
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
...
20.
Section 3.115 of the Act, 415 ILCS 5/3.115 (2002),
defines air pollution as:
"AIR POLLUTION" is the presence in the atmosphere
of one or more 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.
21.
Section 3.165 of the Act, 415 ILCS 5/3.165 (2002),
defines contaminant as:
"CONTAMINANT" is any solid, liquid, or gaseous
matter, any odor, or any form of energy, from
whatever source.
-7-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
22.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2002),
defines person as:
"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.
23.
Respondents are "persons" aS that term is defined in
Section 3.315 of the Act, 415 ILCS 5/3.315(2002). (Answer, Count
I, par. 23)
24.
Asbestos is a "contaminant" as that term is defined by
Section 3.165 of the Act, 415 ILCS 5/3.165 (2002). (Answer, Count
I, par. 24)
25.
From December of 2001, or a date better known to
Respondent, through at least February 5, 2002, Respondent caused
or allowed dry friable asbestos containing material to enter into
the environment.
(Zappa Affidavit, Hygieneering Affidavit,
Miller 2004 dep., pp. 30, 63, Vincennes Response to Request for
Admission of Facts, Request No. 8, Answer, Count I, par. 15, and
also Answer, Count I, par. 17)
26.
As the owner of the property on which the renovation
activity was taking place, the Respondent, Vincennes, caused,
threatened or allowed the discharge or emission &f asbestos into
the environment so as to cause or tend to cause air pollution in
that dry, friable asbestos fibers were released into the
atmosphere during the renovation activities. (Zappa Affidavit,
-8-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Hygieneering Affidavit, Miller 2004 Dep., pp. 30,63, Response to
Request for Admission of Facts, Request No. 8, Answer, Count I,
par. 15, and also Answer, Count T, par. 17)
27.
By allowing dry friable asbestos containing materials
to remain in a friable state, exposed to the environment,
Respondent has caused or allowed air pollution in Illinois in
violation of Section 9(a) of the Act, 415 ILCS 5/9(a) (2002) and
35 Ill. Adm. Code 201.141.
28.
There exists no genuine issue as to any material fact,
and the Complainant is entitled to judgment on Count I on the
pleadings, admissions on file, depositions and affidavits.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against
Respondent, 4832
S. VINCENNES,
L.P., on this Count I:
1.
Finding that Respondent has caused or allowed
violations of Section 9(a) of the Act and 35 Ill. Adm. Code
201.141;
2.
Ordering the Respondent to cease and desist from any
further violations of Section 9(a) of the Act and 35 Ill. Adm.
Code 201.141;
3.
Assessing a civil penalty of.$50,000.00 against
Respondent for each violation of the Act and pertinent Board
regulations, with an additional penalty of $10,000.00 per day for
-9-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
each day that the violations continued, a~s delineated more fully
in the penalty requested section below;
4.
Taxing all costs in this action, including expert
witness, consultant and attorneys fees, against Respondent; and
5.
Granting such other relief as the Board deems
appropriate and just.
COUNT
II
FAILURE TO INSPECT AND TO FOLLOW PROPER EMISSION CONTROL
PROCEDURES
1
-
22.
Complainant restates and incorporates by reference
herein paragraphs 1 through 17 and 20 through 24 of its Motion
for Summary Judgment on Count I as paragraphs 1 through 22 of its
Motion for Summary Judgment on Count II.
23.
Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)
(2002), provides as follows:
No person shall:
1.
Violate any provisions of Sections 111, 112,
165, 173 of the' Clean Air Act, as now or
hereafter amended,
or federal regulations
adopted pursuant thereto.
24.
Pursuant to Section 112(b) Cl) of the Clean Air Act
("1CAA"1),
42 USC 7412(b) (1), the Administrator of the United
States Environmental Protection Agency ("USEPA'I) has listed
asbestos as a hazardous air pollutant.
25.
Section 112(d) of the CAA, 42 USC 7412(d), titled,
Emission Standards, provides -in pertinent part as follows:
-10-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
1.
The Administrator shall promulgate regulations
establishing
emission
standards
for
each
category or subcategory of major sources and
area sources of hazardous air pollutants
listed for regulation...
26.
Section 112(h) of the CAA, 42 USC 7412(h)
,
titled, Work
Practice Standards and Other Requirements
,
provides in pertinent
part as follows:
1.
For the purposes of this section, if it is not
feasible in the judgment of the Administrator
to prescribe or enforce an emission standard
for control of a hazardous air pollutant or
pollutants, the Administrator may, in lieu
thereof, promulgate a design, equipment, work
practice, operation standard, or combination
thereof, which in the Administrator's judgment
is
consistent
with
the
provisions
of
subsection (d) or (f) of this section...
27.
On June 19, 1978, the Administrator determined that
work practice standards rather than emission standards are
appropriate in the regulation of asbestos, 43 Fed. Reg. 26372
(1978)
,
and therefore, pursuant to Section 112 of the CAA, the
USEPA has adopted National Emission Standards for Hazardous Air
Pollutants (NESHAPs), including asbestos, 40 CFR 61, Subpart Md.
28.
Section 61.141 of the USEPA's NESHAPs, 40 CFR 61.141
(July 1, 1997), provides, in part, as follows:
All terms that are used in this subpart and are not
defined below are given the same meaning as in the
Act and in subpart A of this part.
Asbestos
means the asbestiform varieties of serpentinite
(chrysotile)
,
riebeckite (crocidolite)
,
cummingtonite-
grunerite, anthophyllite, and actinolite-tremolite.
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Category II nonifri able ACM
means any material,
excluding Category I nonfriable ACM, containing
more than 1 percent asbestos as determined using
the methods specified in appendix A, subpart F, 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.
Facility
means
any
institutional,
commercial,
public,
industrial,
or residential
structure,
installation, or building (including any structure,
installation or building containing condominiums or
individual dwelling units operated as a residential
cooperative, but excluding residential buildings
having four or fewer dwelling units); any ship; and
any active or inactive waste disposal site.
For
purposes
of
this
definition,
any
building,
structure, or installation that contains a loft
used as a dwelling is not considered a residential
structure,
installation,
or
building.
Any
structure,
installation
or building that
was
previously subject to this subpart is not excluded,
regardless of its current use or function.
Friable asbestos material
means
any material
containing more
than
1 percent
asbestos
as
determined using the method specified in appendix
A, subpart F, 40 CFR 763 section 1, Polarized Light
Microscopy,
that,
when dry
can be
crumbled,
pulverized, or reduced to powder by hand pressure.
If the asbestos content is less than 10 percent as
determined by a method other than point counting by
polarized
light microscopy
(PLM),
verify
the
asbestos content by point counting using PLM.
Owner or operator of a demolition or renovation
activity
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.
-12-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Regulated asbestos-containing material
(RACM) means
Ca)
Friable asbestos material,
Cb)
Category I
nonfriable ACM that
has
become
friable,
Cc)
Category I nonfriable ACM that will be or has been
subjected
to
sanding,
grinding,
cutting
or
abrading, or Cd) 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.
Remove
means
to
take
our
RACM
or
facility
components that contain or are covered with RACM
from any facility.
Renovation
means altering a facility or one or more
facility components in any way, including the
stripping or removal of RACM from a facility
component.
operations in which load-supporting
structural members are wrecked or taken out are
demolit ions.-
29.
The building as referenced herein is a "facility" as
that term is defined in 40 CER 61.141.
30.
The replacement of the floors at the building
constitutes a "renovation" as that term' is defined in 40 CFR
61.141.
31.
Respondent Vincennes, as the owner of the building, was
the "owner" of the renovation activities, as that term is defined
in 40 CER 61.141. (Answer, Count II, par. 31)
32.
Respondent Batteast, as the person that operated,
controlled or supervised the renovation activities, was the
"operator" of the renovation activities, as that term is defined
in 40 CFR 61.141.
-13-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
33.
Section 61.145(a) of Title 40 of the Code of Federal
Regulations, 40 CFR 61.145(a) (July 1, 1998), as adopted in
Section 9.1(d) of the Act, titled, Standard for demolition and
renovation: 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.
34.
Section 61.145(c) (1) of USEPA's NESHAPs, 40 CFR
61.145(c) (1) (July 1, 2002), titled, Standard for demolition and
renovation:
Procedures for asbestos emission control,
,provides
in
pertinent part as follows:
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.
35.
Section 61.145(c) (6) of USEPA's NESHAPs, 40 CFR
61.145(c) (6) (July 1, 2002), as adopted in Section 9.1(d) of the
-14-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Act, titled, Standard for demolition and renovation:
Procedures
for asbestos emission control, provides, in pertinent part, as
follows:
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:
(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;
36.
Respondent, as owners and operators of a renovation
activity, failed to conduct a thorough inspection of the facility
for the presence and location of asbestos before commencing
renovation activities in violation of the Clean Air Act, or more
specifically the NESHAP for asbestos and therefore were in
violation of Section 9.1(d) (1) of the Act, 415 ILCS
5/9.1(d) (1)
(2002) and 40 CFR 61.145(a).
(Zappa Affidavit,
Hygieneering Affidavit, Miller 2004 Dep. pp. 30, 63, Answer,
Count I, par. 5 and also Answer, Count I, par. 17)
37.
Respondents, as owners and operators of a renovation
activity, failed to remove all RACM from a facility being
renovated or demolished before an activity began that would break
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
up, dislodge, or similarly disturb the material or preclude
access for subsequent removal in violation of the Clean Air Act,
or more specifically the NESHAP for asbestos and therefore are in
violation of Section 9.1(d) (1) of the Act, 415 TLCS 5/9.1(d) (1)
(2002) and 40 CFR 61.145 Cc) (1).
(Zappa Affidavit, Miller 2004
Dep. pp. 30, 63, Answer, Count I, par. 5, and also Answer, Count
I, par. 17)
38.
Respondents failed to adequately wet all RACM and
ensure that it remained wet until collected and contained or
treated in preparation for disposal in violation of Section
9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1) (2002) and 40 CER
61.145(c) (6).
(Zappa Affidavit, and also Vincennes Response to
Request for Admission of Facts, Request No. 8)
39.
The Respondent, by the actions or inactions as alleged
herein, has violated Section 9.1(d) (1) of the Act, 415 ILCS
5/9.1(d) (1) (2002), and 40 CFR 61.145(a), (c)
(1), and (c) (6).
40.
There exists no genuine issue as to any material fact,
and the Complainant is entitled to judgment on Count II on the
pleadings, admissions on file, depositions, and affidavits.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
prays for the entry of summary judgment in its favor and against
the Respondent, 4832
S.
VINCENNES,
L.P., on this Count II:
-16-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
1.
Finding that Respondent has caused or allowed
violations of Section 9.1(d) (1) of the Act, 415 ILCS 5/9.1(d) (1)
(2002), and 40 CER 61.145(a), (c)
(1), and (c) (6);
2.
Ordering the Respondent to cease and desist from any
further violations of Section 9.1(d) (1) of the Act and 40 CFR
61.145 (a)
,(c) (1), and (c) (6);
3.
Assessing a civil penalty of Fifty Thousand Dollars
($50,000.00) against Respondent for each and every violation of
the Act and pertinent regulations, with an additional penalty of
Ten Thousand Dollars ($10,000.00) per day for each day of
violation, as delineated more fully in the penalty requested
section below.
4.
Ordering Respondent to pay all costs, including
attorney, expert witness and consultant fees expended by the
State in its pursuit of this action; and
5.
Granting such other relief as this Board deems
appropriate and just.
IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c) (2004), provides
as follows:
In making its orders and determinations, the Board
shall take into consideration all the facts and
circumstances bearing upon the reasonableness of
the emissions, discharges, or deposits involved
including, but not limited to:
1.
the character and degree of injury to, or
interference with the protection of the
-17-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
health, general welfare and physical property
of the people;
2.
the social and economic value of the
pollution source;
3.
the suitability or unsuitability of the
pollution source to the area in which it is
located, including the question of priority
of location in the area involved;
4.
the technical practicability and economic
reasonableness of reducing or eliminating the
emissions, discharges or deposits resulting
from such pollution source; and
5.
any subsequent compliance.
.In response to these factors, the Complainant states the
following:
1.
Complainant contends that human health and the
environment were threatened by the release of asbestos fibers
into the atmosphere, especially to the workers on site and the
nearby neighborhood because of the Respondent's alleged
violations.
2.
Renovation and rehabilitation of poor housing stocks
such as the building which is the subject of the Complaint has
social and economic value.
3.
The renovation site and activities that are the subject
of the Complaint are suitable to the area in which they are
located.
4.
dompliance with the requirements of the Act, the Board
Air Pollution Regulations and the applicable federally-delegated
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
programs and NESHAP regulations is both technically practicable
and economically reasonable for the Respondent.
5.
Complainant states that Respondent has subsequently
complied with the Act, the Board Regulations, and the applicable
federally-delegated programs and NESHAP regulations.
A civil penalty should be assessed against the Respondent
because of the possibly severe impact the exposure to asbestos
had on human health and environment.
EXPLANATION OF CIVIL PENALTIES REOUESTED
Section 2(b) of the Act, 415 ILCS 5/2(b) (2004), provides:
It is the purpose of this Act, as more specifically
described
in
later
sections,
to establish
a
unified, state-wide program supplemented by private
remedies,
to restore, protect and enhance the
quality of the environment,
and to assure that
adverse effects upon the environment are fully
considered and borne by those who cause them.
(emphasis added)
The principal reason for penalties for violations of the Act
is to aid in enforcement.
Punitive considerations are secondary.
Tni-County Landfill Company v. Illinois Pollution Control Board,
41 Ill.App.3d 249, 353 N.E.2d 316, 325 (2nd Dist. 1976).
Section 42(a) of the Act, 415 ILCS 5/42 (a) (2004)
,
provides
in pertinent part, as folloWs:
a)
Except as provided in this Section, any person
that violates any provision of this Act or any
regulation adopted by the Board, or any permit
or term or condition thereof,' or that violates
any order of the Board pursuant to this Act,
shall be liable for a civil penalty of not to
-19-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
exceed $50,000
for
the violation and an
additional civil penalty of not to exceed
$10,0 0 0
for
each
day
during
which
the
violation continues;
If the Board finds that Vincennes violated the statutory and
regulatory provisions alleged in Counts I and II, using a
December 10, 2001 discovery date continuing to February 5, 2002,
when the work stopped, the maximum statutory penalty that Section
42 of the Act authorizes for those violations is $642,000,
including the penalty for continuing violations of $10,000 per
day.
Penalties for violations of the Act and regulations are
calculated according to the formula contained in Section 42 (a).
The statutory maximum is calculated as follows:
Count I
2. violation of Section 9(a)
$
50,000
1 violation of Section 201.141
50,000
2 violations continuing 57 days
114,000
Count II
1
violation of Section 9.1(d) Cl)
50,000
1 violation of 40 CF'R 61.145 (a)
50,000
1 violation of 40 CF'R 61.145 Cc) (1)
50,000
1 violation of 40 CER 61.145(c) (6)
50,000
4 violations continuing 57 days
2.28j,00
TOTAL
$642,000
Section 42(h) of the Act, 415 TLCS 5/42(h) (2004), provides:
In determining the appropriate civil penalty to be
imposed under
....
,
the Board is authorized to
-20-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
consider any matters of record in mitigation or
aggravation of penalty, including but not limited
to the following factors:
1.
the duration and gravity of the violation;
2.
the presence or absence of due diligence on
the part of the respondent in attempting to
comply with requirements of this Act and
regulations thereunder or to secure relief
therefrom as provided by this Act;
3.
any
economic
benefits
accrued
by
the
respondent because of delay in compliance with
requirements,
in which case
the economic
benefits shall be determined by the lowest
cost alternative for achieving compliance;
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
violator and other persons similarly subject
to the Act;
S.
the number, proximity in time, and gravity of
previously adjudicated violations of this Act
by the violator.
6.
whether
the
respondent
voluntarily
self-
disclosed, in accordance with Subsection (i)
of this Section, the non-compliance to the
Agency; and
7.
whether the respondent has agreed to undertake
a "supplemental environmental project," which
means an environmentally beneficial project
that a respondent agrees to undertake in
settlement of an enforcement action brought
under this Act, but which the respondent is
not otherwise legally required to perform.
In response to these factors, the Complainant states as
follows:
-21-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
1.
The violations that are the subject of the Complaint are
alleged by Complainant to have occurred tram approximately December
10, 2001 to February 5, 2002. After the Respondent was notified by
the City to stop work, it did so, but not before when the asbestos
was actually discovered.
The gravity of the violations should
not be minimized.
Release of asbestos, a known contaminant, to
the atmosphere could have caused severe health effects to the
neighborhood and workers at the site.
2.
Respondent was not diligent in attempting to come back
into compliance with the Act, Board regulations and the applicable
federally-delegated programs and NESHAP regulations, but did so
once the City of Chicago issued a stop-work order, and days after
the Illinois EPA had requested the work be stopped.
3.
The Respondent may have accrued a nominal economic
benefit by failing to abate the asbestos on the premises before
starting the renovation, but did incur the costs at a later date,
approximately 8 months later.
4.
Complainant states that a maximum penalty payment of
$642,000 will serve to deter future violations and aid in future
voluntary compliance with the Act and Board regulations.
5.
To Complainant's knowledge, Respondent has no previously
adjudicated violations.
6.
Self-disclosure is not at issue in this matter.
-22-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
7.
Respondent did not offer to perform a supplemental
environmental program.
These aggravating and mitigating factors provide guidance to
the Board in determining the appropriate amount of a civil penalty
in an environmental enforcement case. Accordingly, the Complainant
brings these factors to the Board's attention.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board grant its Motion for Summary
Judgment against the Respondent, 4832 S. VINCENNES, L.P., award the
relief requested herein, and take such other action as the Board
believes to be appropriate and just.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN, Attorney
General of the State of Illinois
By:
_
_
_
__
PAULA
BECKER
WHEELER
Assistant Attorney
General
Environmental Bureau
188 W. Randolph St., 20th Fl.
Chicago, Illinois 60601
(312) 814-1511
-23-
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
10-17-05; 10:37AM; ILLINOIS E.P.A.
;618 346 5155
4
2/
4
Oct-17T-05
a?:il1am
Ercm-IAGO-EIVIROPMENTAL BUREAU
+3128142347
T-338
P.002/004
F-120
BEFORE THE ILLINOIS POLLUTION CONTROL BOARiD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
-vs
-
No.
04-7
4832
S. VINCENNES,
L.P., an)
(Enforcement- Air)
Illinois limited partnership, and
27\rrW7%gT flnhT5TP1TrTTnNT rflMPtbTy.
Mrf'-
I
an Indiana corporation,
Respondents.
AF
FI
D A VITL
I, JOSEPH W.L ZAPPA, being duly sworn on oath, depose and
state that I am over 21 yeats of age, have personal knowledge of
the facts stated herein, and, if called as a witness, could
competently testify to the following:
1.
I am a Licensed Asbestos Inspectot and a Licensed
Asbestos Abatement Supervisor in the State of Illinois.
2.
I am currently ernployed as an Environmental Associate by
the Illinois Environmental Protecti-on Agency ("Illinois EPA") and
have held this position since 1999. In January of 2002, I was
assigned to the Bureau of Air, Des Plaines office, Des Plaines,
Ilino
is.-
3.
As an Inspector for the Illinois EPA, my duties and
responsibilities include inspecting premises for alleged
violations
of the Environmental Protection Act and the
reg-ulations that pertain to it.
I also am responsible for NESHAP'
compliance inspections.
As part of my job duties, I testify in
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
10-17-051 10:37AM; ILLINOIS E.P.A.
;618 346 SI55
3<
4
Oct-1 7-05
OT:SI am
From-IAGO-ENVIRONMENTAL BUREAU
+3128142347
T-SS8
P.003/004
F-120
hearings and in court for any violations found in cases that
proceed
Lu ~if~uue±La±
aL
hearing.
4.
On January 21, 2002, I performed
an inspection of the
multi-unit building located at 4832 S. Vincennes Street, Chicago,
Illinois, which is the subject of the First Amended Complaint,
Board Case Number PCB 04-07.
5.
I
have
read the First Amended Complaint, and am aware
of the contents thereof.
6-
The factual matters set forth in the First Amended
Complaint
are true
and correct in substance anrd in fact, to the
best of my knowledge and belief.
7. Specifically, when I inspected the premises at--the -4822
S. Vincennes site, Chicago, Cook County, Tllinois, I found dry,
friable suspected asbestos containing material on the pipes and
on the floor of the basement area.
It was in very poor condition
and falling of f the pipes.
The material that I removed for
sampling from that area
tested
positive for 55% to 75% chrysotile
asbestos.
8.
On January 31, 2002, the owner's representative,
Gregory Miller,
refused
to stop work on the premises when
requested, and the contractor continued to work.
The City
of
Chicago was contacted and issued a stop work order on February 5,
2002.
9.
On January 3.1, 2002, several workers we re present at
the Site doing work in and around the first floor area.
Most of
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
IO-17-05;1O:37AM;ILLINOIs E.P.A.
.618 346
5155#
4/
4
uct-i;(-u~ U~uj
ian
tromrIAGU-bNIKOMNtfTAL BUREAU
+3123142347T
7-338
P.004/004
F-120
the windows and doors were open to the atmosphere, arnd none of
the workers were wearing personal protective equipment or
utilizing any emission control measures, including failing to wet
the asbestos containing material in preparation for disposal.
FURTHER,
APFIANT
SAYETH
NOT.
V
JOSEHW
AP~
SUBSCRIBED and SW0ORN
t~o
before
me
this 17th day
of October, 2005.
NOTARY
PUBLIC
..............................
urnLImum SEAL'
PAULA oTTmNSMEIER
g,
%NOTARY pUBUC~-STATE OF ILUIOIS%
bAy CGAMSSION ExPIRES NOV. 9,
2D07
%...........................................
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS,
Complainant,
-vs-
No.
04-7
4832 S. VINCENNES, L.P., an)
(Enforcement
-
Air)
Illinois limited partnership, and
BATTEAST CONSTRUCTION COMPANY, INC.,)
an Indiana corporation,
Respondents.
AF
FI
DA
VI
T
I, JOSEPH W. ZAPPA, being duly sworn on oath, depose and
state that I am over 21 years of age, have personal knowledge of
the facts stated herein, and, if called as a witness, could
competently testify to the following:
1.
I am a Licensed Asbestos Inspector and a Licensed
Asbestos Abatement Supervisor in the State of Illinois.
2.
I am currently employed as an Environmental Associate by
the Illinois Environmental Protection Agency ("Illinois EPA") and
have held this position since 1999. In January of 2002, I was
assigned to the Bureau of Air, Des Plaines office, Des Plaines,
Illinois.
3.
As an Inspector for the Illinois EPA, my duties and
responsibilities include inspecting premises for alleged
violations of the Environmental Protection Act and the
regulations that pertain to it.
I also am responsible for NESHAP
compliance inspec tions. As part of my job duties, I testify in
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
hearings and in court for any violations found in cases that
proceed to enforcement and a hearing.
4.
On January 31, 2002, I performed an inspection of the
multi-unit building located at 4832 S. Vincennes Street, Chicago,
Illinois, which is the subject of the First Amended Complaint,
Board Case Number PCB 04-07.
S.
I have read the First Amended Complaint, and am aware
of the contents thereof.
6.
The factual matters set forth in the First Amended
Complaint are true and correct in substance and in fact, to the
best of my knowledge and belief.
7. Specifically, when I inspected the premises at the 4832
S. Vincennes site, Chicago, Cook County, Illinois, I found dry,
friable suspected asbestos containing material on the pipes and
on the floor of the basement area.
It was in very poor condition
and falling off the pipes.
The material that I removed for
sampling from that area tested positive for 55% to 75% chrysotile
asbestos.
8.
On January 31, 2002, the owner's representative,
Gregory Miller, refused to stop work on the premises when
requested, and the contractor continued to work.
The City of
Chicago was contacted and issued a stop work order on February 5,
2
002 .
9.
On January 31, 2002, several workers were present at
the Site doing work in and around the first floor area. Most of
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
the windows and doors were open to the atmosphere, and none of
the workers were~
wearing personal protective equipment or
utilizing any emission control measures, including failing to wet
the asbestos containing material in preparation for disposal.
FURTHER, AFFIANT SAYETH NOT.
JOSEPH W. ZAPPA
SUBSCRIBED and SWORN
to bef
ore
mec
this 17th day
of October, 2005.
NOTARY PUBLIC
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
10/17/2005 09:28 FAX
630 789 3813
HYGIENEERINO
1i
002/003
FROM
:HYI3IEIJEERING3
FAX NO. !12626424250
Oct.
17
2005
09:35R'1
P2
1Oi17/20Q5
oa.00
FAM
630
7089
iO1
HVSIENEERIHO
MA40ARET,
31003/010
OcaH
1 ll0
S14ll.
Pu-14-IAfNY
NIUNTAL
BURIAU
NV141447
MIUS
0.a11eo,
Mi1S
flUpo
103
UWTO=IS
POL
LftlZ
cCCROL
BOARD
?bOIZZ flP
flz
8fl25 OF ZLLZNOIS
Complminait;,
N~O.
04- 7
4852
S. VINlcnS,
L.P..
an
)
(Enforceument
-
Air)
flhinwi,
lijiitad
palttlership.
mbd
DATnABT
ComSriwCTZOU
COMPAIQ,
xuC..)
am
InGlanA
Corporation.
S.
)QA=Z
GUZDAflLLI-PE-LLET.l-
, bei ng
duly
sworn on
*&th,
denope &ad
stinte that I
am
bver
21. yearS
of age,
have personal
knowrledge
of the
facts stated beroin,
and,
if
called
a.
a
witaese,
could competantly
tufltity
to
the foflowinga
.31. z am
the President
oZ0
eor.n
ic.
an
Industrial,
safety and envircmuuntal
qousulting sertvtce'
locategd
at 7515
Plaza Corurt,
Willowbrook,
Zljincia.
Ou
cofpany performs
profeseional
asbestos
COnslting and testing sen-ices
and
asbestos abatement.
;.
Our
acepany was
contacted
by latteasot COnstructinn
on or
afound December
10,
2001.
concenctn
pcuuible
asbestos g
the
site of the uuati-unit buil4±ng located at 46j3
S.
VlZrUannsu.
Chicago,
Cook County,
Ifinoia
-
2.
Pursuan't to that
±nquirY,
our companWyeprformsd
asbestos
rtestingq,
and
altor
asbestos was lcur4.
prepared
a bid for a
contrXact to psrtcmr
'Cae
abatement
alt
the
site.
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
10/17/2005 09:28 FAX
830 789 3813
HYGIENEERING
~I
003/003
FROM1 HYGIEOEERINO
FAX NO. ;1262642a250
Oct.
17 2005
09:48RM
P3
10/17/2600
60:30
FAX
830
709
MI1
HVUrEEEERING
MARGARETla04,1
h:iC
lia
rIac4JWIRUNENITAL
IUREAU
+2IZBIAZMT
7.11
P.003/439
P-ill
e.
The attached copies
of original documents
wets
Tmad,
in
the regifler of basiztees
at our cfticem,
such recgrds
were
routinelY
generated when
dnslng
wit1h
CUstomers
and were made
at
the time of the act
or
evonn reelluced therei~n,
or
w~thjja
a
reasonable
time Ehereaftcr.
any stickere
atatIn'plaaif'
chLbtftbt
were not Vsmo
the original
dimcumanr..
5.
The attached nc~ocde
inc2ude:
a)
a
letter
dated
EIftcptbk~r 10,
2001 to Batteast
Contstruction pr-opseinzg
a
hic4
to
perform
an inspection at 48fl
U.
Vi~ncenne
to i4.nt1Uy eubeatos
ecnt;a~zzing
maturias~s
b)
a
two-page
copy of
thre
la~b results
requested by Bgieaeer~zg
of asbestos
ewlylee from 4032 8.
fLuoew01p
*hvwizw posirtne results for
ambentoe con tbe
samples
taken,
dated Dec.
32.
2001 per
the fa~x line rzoeaein. a) a
ttwo-
pags copy of the E.ta proposal
Cor aibeeros abatement
sent.
to
Dazzeast
cwnutructionl Gatd January
9,
2002
*
dl
ta ±nn;icg dated
Jonaazy 18, 2002 to Dattoast Cwwno~rutign rmtiaesting payment for
services rendered in
teetin*
for eabeatos at 40S12 S. VinIcenuso.
The* wopiea of
thaen
records &an true and aCe~va~
ant reflect the
record
made
at
the
time-of
the event.
FUR-.HER,
APE IANT
as
NT
MAuGaanw GUZD13Lz
-
JL~j~
SVDzC~nxf
And
BROW
t~hetra~g)
L7iim
day
JEAINEJ.CANEONARO0
NOTRY
U~lC.STATE
OF ILWOig
lAY
CM~rsrouXPIRES
802002007
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLIJNOTS,
Complainant,
-vs-
No.
04-7
4832 S. VINCENNES, L.P., an)
(Enforcement
-
Air)
Illinois limited partnership, and
BATTEAST CONSTRUCTION COMPANY, INC.,)
an Indiana corporation,
Respondents.
AF FI DA VI T
I, MARGARET GUIDARELLI-PELLETIER, being duly sworn on oath,
depose and state that I am over 21 years of age, have personal
knowledge of the facts stated herein, and, if called as a
witness, could competently testify to the following:
1.
I am the President of Hygieneering, Inc., an
industrial, safety and environmental consulting service, located
at 7575 Plaza Court, Willowbrook, Illinois. Our company performs
professional asbestos consulting and testing services and
asbestos abatement.
2. Our company was contacted by Batteast Construction on or
around December 10, 2001, concerning possible asbestos on the
site of the multi-unit building located at 4832 S. Vincennes;
Chicago, Cook County, Illinois.
3. Pursuant to that inquiry, our company performed asbestos
testing, and after asbestos was found, prepared a bid for a
contract to perform the abatement at the site.
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
4.
The attached copies of original documents were made in
the regular of business at our offices, such records were
routinely generated when dealing with customers and were made at
the time of the act or event reflected therein, or within a
reasonable time thereafter. Any stickers stating "Plaintiff's
exhibit" were not part of the original document.
5.
The attached records include: a) a letter dated
December 10, 2001 to Batteast Construction proposing a bid to
perform an inspection at 4832 S. Vincennes to identify asbestos
containing materials, b) a two-page copy of the lab results
requested by Hygieneering of asbestos samples from 4832 S.
Vincennes showing positive results for asbestos on the samples
taken, dated Dec. 31, 2001 per the fax line notation, c) a two-
page copy of the Bid Proposal for asbestos abatement sent to
Batteast Construction dated January 8, 2002, d) an invoice dated
January 18, 2002 to Batteast Construction requesting payment for
services rendered in testing for asbestos at 4832 S. Vincennes.
The copies of these records are true and accurate and reflect the
record made at the time of the event.
FURTHER, AFFIANT SAYETH NOT.
MARGARET GUTEARELLI -PELLATIER
SUBSCRIBED and SWORN
to before
ime
this 27th
day
of October, 2005.
NOTARY PUBLIC
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
lf:4
OfHIItHti[
CUNJItiCAC 96083
NO. 521
p01
I..Ifl0I
.123
F.X 030 789
4011
iIYGIENWFiRIN
-
~
t11u
P~r'1-ly
ienering
incg-7
plia±g
Court.-WIlwl~wrO~k, IL
80521
'.
KIindustrial
hygiene, safety and
qnvironmreflta
consultin~g servia(6)5450UFA:60)7-81-
Decrember 10, 2Q01
Ms. Valerie g3tlteat-AICTflhing
inFax:
219-28S.-2270
B3ariteasc ConstruCtIOfl.
1
l
.f/
430
Fi.
LaSalle
I
Sout1.11ltend,tN
4661?
J
Rh:Toidntfyth
srvct
an
fesnsucaw
wthth
Professional Asbestos Consulting and Tsi~iTng
Service.~ Ibr work
atssock'ttd with the
property at 4232 S. Vincennes (Mayfair
ApEU1tIMets).
To support
the
above refCerenced project, Hygieneer-ing will perform
an
ont-sie inspection
of the
property
located
at
4832
S.
\Vincennfes
co
idcndify
asbestog containing
materials.
Samnples
will
be collected of
suspect asbcslos containing bcilding materials.
Bulk samples collected will be analyzed
by
Polarized Ligbr
Miczroscopy (hit
4
) in
%
IP/LVP
accredited laboratory.
A project report of will be
subinitted
Within
)ThrC
xvecls or tha project
cornpletiin.
Assucined
Ve
Ilie
fixed
fee It'r the on-site~ifsp6ction, report generation and
analysis~ for up to 3 PLM
bulk
snrnplts is~
If additional
PLM bulk
s~trnliing is necessary, $20.00 per bulk
samtiple
will
ba
chiarged.
Additional
bulik
samp'ing w ill not be
conclucltO
unless
approved
by
Ticdatist
Construction Repre~sentaiive.
A shift is defincd as up to 8:cotsecuilive working hours.
Additional
Lime spent will be billed at a trale
ol
$75.00 per hour.
This
document has
bctn
saul to
clarify
project scope and associated fees, if there are anty questions
please.
Cont~act
Mc
at lHygieneeriflg,'lflC.
We will schedule this work accordingly with
BUitaSt
Con1AfttCti0i)
to
meet
the
projectSi
needs accofaingly.
Thank you for
thi
Ipoln~Yt
assist Hattenst. Construsetion
in
meeting
the legal
and ethical
Mtlndards
uts
they apply to safety
and
etnvironmenthll health.
Acceptance
of Proposal
AuthoflYztd Signcnire
Authorized
Signature
f-rygicnccring. Inc.
fatteast
cosrct
kO;/
Date:
A;~iSSLtqŽ.L
Date:
.t.~~l
To
Contirm scheduling
oflhlis
work,
pleaste
review
(lie
following Terms & Conditions, sign, date
grnd
fax
a
copy of this dlocunietlt
to:
Ijacquiolinie
M. CadwvaLlader
Ilygienaerling,
Inc.
FAX:- 630-789.3813
CC:
Brad Karich.
IlygieneerineS
Inc.
Proposal 259
ILAINTIFF'S
PLAHIBIi
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
12/31/01 10.48 FAX 630 789 3813
HYGIENEERING
I1j002/003
Hygieneering,
Iflnc.Plz
Court,
IM~owbrook. IL 6
industrial hygiene, safety and environmental consulting services
(630) 654-2550 U
(SW0)
789
PLM LABORATORY REQUEST FORM
PRIORITY
ASAP
24H. 24 DAYS
OTHER
___9___
(CIRCLE ONLY ONE)
PG
NAME
trc
TcaA
4c
PROJECT'K~~
COMPN
5Y1Ae½,
CIY
SAEZP
LINIFSAMPLING
DATE(S)-o
POE
SAMPLED
BYNbCku
K
CLIENT PLEASE FILL IN SAMPLE
#AND
SAMPLE DESCRIPTION
4
_______
_______
SAMPLE #0
LAB#
HOMOGEN
PLE
DESC
PTCON
ASBESTOS
OTHER FIBROUS
JOTHER
NONflBROUi
____
PRSENTfrYPE*
COMPNENTS
J
g
1PINLE
S
O3~A0N
Qzp
QDY
ON
DY
ON
*Asbestos
includes
the
asbestiformn
varieties of chrysotile.
amosile,
crocidotite,
tremolite,
antbophyflimtc
and
actinolite.
A
substance iLs
Trsidered
asbestocat in maeIl if it contains > 1%
asbestos.
COMMENTS:
UC-
RELIQU1SHED.
'j~lDATE
--
RCEIVED BY
DATE
CLIENT
.~,~DATE
ANALYAIDJ
t-*
NUMBER
V
tANALYZED'.
~IrdkA
By
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
t~JHygieneering,
Inc.
.7S7S-Paza Co6fn, Wlflowbrook, IL
industrial hygiene, safety and environmental consulting services
(630) 654-2550.E FAX: (630) 78S
PLM LABORATORY
REQUEST FORM
PRIORITY
ASAP
24It.
2-4 DAYS
OTHER
_____
(CIRCLE ONLY ONE)
c5>__
PAGE
OF
_
_
NAME
PROJECT
ADDRESS
CITY, STATE. ZIP
SAMPLING
DATE(S)
I2V
PHONE
SAMPLED BY
Vusz
Nucg
FAX
CLIENT PLEASE FILL EN SAMPLE # AND SAMPLE DESCRIPTION4,4,
_____________
SAMPLE
I
LAB#
HOMOGEN I S4MPLE
DESCRIPTION
IASBESTOS
OTHER FIBROUS
]OTHER NONFIBRC
OU___
_I__PRESENTiTYPEt
COPNENTS
COMPONENTS
'JA
sbso
icue teabetfr
v
areisof
hzs o~laofe
rcdltLeoie
nhpylt
n
cioi
subsanc
is sidced
sbetosconin mteral
it
ontans>1% sbetos
COMMETS:4
~
td
Y2ON]o
TELAQLSHNE70tXOJVnJf
o(~EEVDB
AT
NUMBR
07t~DY
t
0Ue
NNLZE
;~
-i'.AAY(
_
CliNT
ON,,
f,
DAE
DY
O
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
5LANTIFF'SCO
Y
I
EXHIBIT
January
8, 20021
Ms. Valerie Batteast-Flemin
ltI'--
-
Via Fax:
219-289-2270
Batteast Construction
430 E. LaSalle
South Bend, IN 46617
RE:
A proposal
to
provide
the
needed
Asbestos
Abatement
Project
Specifications,
Contractor Bid Solicitation and Project Management
IAir
Monitoring services to support
the
asbestos
abatement
at the
Mayfair
Apartments
located
at
4832
S. Vincennes
in
Chicago, IL.
This work will support the removal of thermal system insulation.
PLANNING / DESIGNING THE ABATEMIENT PROJECT
The specification
will be in compliance with IDPH, EPA, and NESHAP regulations and
will
include,
facility
decontamination,
ACM
waste
disposal
requirements
and
air
monitoring procedures to ensure that the project is properly executed. Also included as
part of the project design are the following services: pre-qualifying contractors, scheduling
and
attending
pre-bid walk
throughs, prejob construction
meetings,
variance requests,
evaluating bids and recommending a contractor to perform the work.
Fee for the above-defined services is $2,200.00
PROJECT MANAGEMENT / AIR MONITORING SERVICES
Hygieneering, Inc. will provide On-Site Project Management Services to ensure that work
progress and work plans are properly executed and conditions are documented through
daily inspection and testing services. All Project Managers are dually credentialed
WDPH
Project Managers / Air Sampling Professionals.
Project Manareinent Services Include
1.
Establishing work zones and coordinating the abatement work within them.
2.
Collecting environmental
air
samples and analyzing them on site by Phase Contrast
Microscopy (PCM) with 24 hour TIA for results.
3 .
Daily documentation of the project.
4.
The collection and analysis of Phase Contrast Microscopy (PCM) air samples to clear
the containment system prior to tear down.
5.
A final report documenting daily activity,
air sample results, waste disposal records
and regulatory notification. This documentation
is required and crucial to protect the
Batteast
Construction
from long-term
liability or to
support property transfer.
In
house
final
report
project
documentation
services
will
be
billed
at
the
shift
rate
identified below.
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
COP
Proposal for
Batteast Construction
January 8, 2002
Page Two
Project Management
I
Air Sampling Services $525.00 per shift per Project Manager*
*A shift is defined, as up to eight consecutive working hours, additional time spent on the
project will be billed at a rate of $75.00 per hour.
Senior project management time will be
billed at a rate of $85.00 per hour to properly support the project.
At this time, Hygieneering,
Inc. estimates this project cost for the air monitoring, project
design, air sample analysis and report generation at $5,460.00.
Hygieneering, Inc.'s total project cost is $7,660.00.
Thank you for this opportunity to assist you in meeting the established ethical and legal
standards as they apply to safety and environmental health.
To formally retain the services as referenced in this proposal please sign in the designated
area below
and forward
this document back
to my
attention.
We will
then proceed
accordingly in scheduling this very important project.
Please review the attached terms and conditions that will support this project.
Acceptance of Proposal
Authorized Agent
Authorized Agent
Hygieneering, Inc.
Batteast Construction
Respectfully submitted,
Rygieneering, Inc.
Jacqueline M. Cadwallader
Client Services Representative
Cc:
Brad Karich, Hygieneering, Inc.
Proposal #308
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
IHygieneering, Inc.
7575 Plaza Court, Willowbrook, IL
60521
industrial hygiene, safety and envi
"
rj1IM
Mw
"(630)
654-2550.0 FAX: (630) 789-3813
Bate
January 18, 2002
kib
:1017
M
Prchu-Dle
0341-c
Batteast Construction
R
k
fltttms
Valerie Batteast-Flerning
PLAINTIFF'S
12000 S. Marshfield Avenue, suite
117
EXHIBIT
Calumet City, IL 608275
PRTec#:
2001-4160
HYG
ENV
December 18, 2001
to
December 23, 2001
Mayfair Apartments - Inspection
prot
.. U-
-
*Asbestosconsultingand-testing
services-for work associate4yvth the-
properly at 4832 S. Vincennes (Mayfair Apartments), Chicago, IL. This
invoice includes $60.00 for three additional bulk
samples
collected on
12/18101.
Total-
-
$1,2701.00-
-
Pleas
rflt bid
seineuut
w
flU
days
We
mante ow
work
Wearf
o
bfmu rdatIul whtM rt If
You
a nut
=
utile
WMith
t
swtu
6elyd er
tin
putf
mil
hwdce. -
*
CcalB-VA-25a
takm for ucdet
io lVas
Wednesday, January 16, 2002
Page
1
of
1
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Transcript of the Testimony of
Greg ory Miller
Date: April 26, 2004
Volume: 1
Case: People of the State of Illinois vs.
v. 4832 South Vincennes
Printed On: October 12, 2004
Toomey
Reporting
Phone:
312-853-0648
Fax: 312-977-1333
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
6
0
MierPeople
of the State
Of Illinois vs.
v. 4832 South Vincennes
4/2612004
Page
I
1EOR
THE ILLINOIS POLLUTION CONTROL BOARD
EOPLE OF THE STATE OF
3 ILLINOIS,
4
Complainant,
VS.
)P03 No. 04-7
4832 SOUTH VINCENNES, L.P.,
>an
Illinois Limited
7 Partnership, and BATTEAST
CONSTRUCTION COMPANY, INC.,
48 an Indiana Corporation,
;I'-9
Respondents.
~10
This is the deposition of
11l
GREGORY V. MILLER, called by the Complainant
12
for examination, taken before PEGGY A.
13
ANDERSON, a Notary Public within and for the
14
County of Cook, State of Illinois, and a
15
Certified Shorthand Reporter of said state, at
-16
188 West Randolph, 20th Floor, Chicago,
17
Illinois, on the 26th day of April A.D. 2004,
18
at 11:00 o'clock a.m.
19
2
0
1
21
22
2
3
2 4
Toomey Reporting
312-853-0648
Peggy
e29d3243.e51b-4606-a60e-el
14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
i,.People
of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 2
1AP
P EA RAN
C ES:
THE LAW OFFICES OF:
THE ILLINOIS ATTORNEY GENERAL
BY:
MS. PAULA BECKER WHEELER
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Appeared on behalf of the
THE LAW OFFICES OF:
4
MILLER AND FERGUSON
BY:
MR. GREGORY V. MILLER
10
9415 South State Street
Chicago, Illinois 60619
Appeared on behalf of the
12
Respondent, 4832 South
Vincennes.
13
THE LAW OFFICES OF:
14
ZACHARY HAMILTON
15
BY:
MR. ZACHARY HAMILTON
3340 East Forestview Trail
416
Crete, Illinois 60417
17
Appeared on behalf of the
Respondent, Batteast
18
Construction Company.
19
20
21
22
23
24
Toomy
Reonin
312853-648Peggy
e29d3243-551 b-4606.a~eoeel
14e74e48ffi
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
WITNESS
PAGE
GREGORY MILLER
3
EXAMINATION BY
4
MS. WHEELER:
6-68
5
6
7
9
E X HI BIT
S
1
0
11
MARKED
PAGE
12
PEOPLE'S EXHIBIT NO.
1
(previously marked)
13
PEOPLE'S EXHIBIT NO. 2
6
14
PEOPLE'S EXHIBIT NO. 3
11
15
PEOPLE'S EXHIBIT NO. 4
57
16
PEOPLE'S EXHIBIT NO. 5
59
17
18
19
20
21
*22
23
24
Tourney Reporting
312-853-0648
Peggy
e29d3243-551 b-4606-aS~e-el 14e74e48tb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Gregory Miller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 4
1
(WHEREUPON, the witness
2
was first duly sworn.)
3
MS. WHEELER:
Good morning.
It's
4
11:05 approximately. My name is Paula
5
Becker Wheel er, assistant attorney general.
6,
We are here on the deposition of Gregory V.,
7
as in Victor or Vincent, Miller on the case
8
of People versus 4832 South Vincennes, LP
9
and Batteast Construction, Incorporated,
10
POE Number 0407 before the Illinois
11
Pollution Control Board.
12
Present is Mr. Miller and myself
13
and the court reporter.
Mr. Hamilton has
14
left with his client.
Today is April 26th
15
of 2004.
We are here for the deposition of
16
Mr. Miller.
Mr. Miller, I'm not going to
17
give you any admonitions about taking
18
depositions.
I'm quite sure you know all
19
of it.
20
THE WITNESS:
Yes, I do.
21
MS. WHEELER:
However, if you do need
22
a break, please let me know.
23
THE WITNESS:
Okay.
24
MS. WHEELER:
And for the record, you
Toomey
Reporting
312-853-0648
Peggy
e29d3243-551lb-4606-a6Oe-ei 14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Miler
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 30
1Q
Did you oversee this project?
2A
I was the owner's representative.
Q
The owner's representative.
And, in
.fact, in that capacity, you signed the
5contract; is that right?
6A
No, the owner
--
The general partner
7actually executed the contract.
8Q
And that was Mr. Ferguson?
9A
No
--
Yes, in this case, it would
10have been Mr. Ferguson who signed the contract
on behalf of the general partner, yes.
1jQ
Mayfair?
-
IA
Right.
J
4Q
Okay.
Did you
-
After construction
15 began in approximately July of 2001, were you
16ever on site?
37A
Yes.
* 8
Q
How often would you be on site?
19
A
There was no regular schedule for me
20
to be there.
I mean, early on, I was probably
21
there once a week.
22
Q
Would you see Valerie Batteast when
23
you were there early on?
24
A
Yes.
eyReporting
312-853-0648
Peggy
1,00
e29d3243-551lb-4606-a6oe-el 14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
oyMiller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 63
1A
This was a very compacted time frame.
2 So this may have been the day before or two
3 days prior.
I just don't have any independent
4 recollection.
My memory is bad.
5Q
Do you know where you were when you
6 received the phone call?
7A
At my office.
8Q
Do you know what Mr. Batteast said to
9 you at that time? Again, this is Mr. Bill
o Batteast?>
A
That is correct.
I don't remember
the details of the conversation other than I
believe a couple of the workers had thought
that they saw asbestos in the basement, and he
wanted to give me a heads up knowledge of that;
and I said, well, what are we supposed to do?
He said, well, if that's, in fact, the case, we
need to stop work and then there is a process
that we would have to go through to have
it
first tested and then abated. And I said,
well, I mean, I have no background in getting
this done.
He said, well, we can handle that
and that was the conversation.
The conversation with Mr. Zappa did
Reporting
312-853-0648
Peggy
e29d3243-551lb-4606-a6Oe-el 14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
ryMiller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 66
returns?
A
Yes.
Q
On the front page of those tax
4returns, they are neither signed nor dated;
5those are accurate, though?
6A
Yes, they are.
7Q
When Mr. Batteast informed you before
8 Mr. Zappa was there that there was possible
asbestos contamination, you did not stop work
o
at that time?
A
I did not tell him to stop work at
th.at time, no.
3Q
And, again, you were the owner' s rep?
4A
That is correct.
5Q
In your mind, if he had stopped work,
6he would have been in violation of his contract
7without your direct orders; is that correct?
8A
No.
.9Q
Do you know what safe levels of
o
asbestos are in the atmosphere?
ifA
No, I do not.
2Q
Do you know that there are no safe
3 levels of asbestos in the atmosphere?
A
No, I do not.
cy Reporting
312-853-0648
Peggy
e29d3243-551 b-4606-a6Oe-el 14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
eyMiller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 68
a
exhausted out into the atmosphere?
2A
No.
3Q
You didn't s~ee any of the workers in
protective clothing and respiratory units?
A
On the day that I'm talking about, I
did not see any of that, no.
Q
And when you talked to Mr. Batteast
on the day that he notified you that there was
possible asbestos, he did not convey to you
that he was going to do any of the things I
just told you would be asbestos abatement?
A
That list of items that you said that
Q
(Indicating.)
A
No, he did not tell me that.
MS. WHEELER:
All right.
I have
nothing else.
THE WITNESS:
And I have got nothing.
I will waive signature.
FURTHER DEPONENT SAITH- NOT ....
keorting
312-853-0648
Peggy
e
29
d3243.S5lb.4606-a6oe-e1 14e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
Miller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 69
STATE OF ILLINOIS
)Ss:
COUNTY OF C 0 0 K
I, Peggy A. Anderson, a Notary Public
within and for the County of Cook, State of
Illinois, and a Certified Shorthand Reporter of
said state, do hereby certify:
That previous to the commencement of
the examination of the witness, the witness was
duly sworn to testify the whole truth
concerning the matters herein;
That the foregoing deposition
transcript was reported stenographically by me,
was thereafter reduced to typewriting under my
personal direction, and constitutes a true
record of the testimony given and the
6proce
edings had;
7That
the said deposition was taken
8 before me at the time and place spedified;
9
That the said deposition was
0 adjourned as stated herein;
I
That I am not a relative or employee
2 or attorney or counsel, nor a relative or
3
employee of such attorney or counsel for any of
4
the parties hereto, nor interested directly or
rnyReporting
312-853-0648
Peggy
e29d3243-551 b-4606-a60e-e1 1
4e74e48fb
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
oyMiller
People of the State of Illinois vs.
v. 4832 South Vincennes
4/26/2004
Page 70
1indirectly in the outcome of this action.
2
IN WITNESS WHEREOF, I do hereunto set
3my hand and affix my seal of office at Chicago,
4 Illinois, this
A__
day of
5
,
2004 .
Peggy
A.
Anderson
Notary Public, Cook County, Illinois.
License No. 084-003813
EGy A. ANDESO
4
NotarY Putic. State of
winois
)
M
CmmSsicn Exoires
OS'1O'O5
312-853-0648
Peggy
e29d3243-551b-4606-aS~e-el
14e74e48fl,
ELECTRONIC FILING, RECIEVED, CLERK'S OFFICE, OCTOBER 17, 2005
