2

Finally, while this order resolves the case as to respondent Knauer, the case

against respondent Morfrey is still pending. The parties are directed to proceed with

discovery consistent with the orders of the hearing officer.

THE COMPLAINT AND DEEMED ADMITTED FACTS

As will be explained in more detail below, the People’s complaint (Comp.)

alleged violations of various air pollution prohibitions contained in Sections 9(a), 9. 1(d),

9.13(a) and 9(c) of the Act, 415 ILCS 5/9(a), 9.1 (d), 9. 13(a), 9(c) (2006). Complainant

also alleged violations of Sections 61.145(a) and (b), 61.145(c)(i), (c)(2), (c)(6) and

(c)(8), 61.150(b) of the National Emissions Standards for Hazardous Air Pollutants

(NESHAPs) for asbestos, 40 C.F.R. 61.145(a) and (b), 61.145(c)(i), (c)(2), (c)(6) and

(c)(8), 61.150(b).

1

These alleged regulatory violations included Air.Pollution, Failure to

Inspect and to Submit Complete and Accurate Notification of Demolition and

Renovation, Failure to Remove and Contain Regulated Asbestos Containing Materials

(RACM)

2

in compliance with NESHAP Requirements, Improper Disposal of Regulated

Asbestos-Containing Materials, and Failure to Pay Asbestos Fee.

As previously stated, the People filed their complaint against respondents on June

15, 2007, and provided proof that respondent Knauer had been served with the complaint

on June 18, 2007. Mot. at 2 and Exh. 1. As of the date of this order, respondent Knauer

has not appeared and has not filed an answer or other appropriate pleading in response to

the complaint.

Under the Board’s procedural rules, respondent has 60 days in which to file an

answer or appropriate motion in response to the complaint.

See

35 Ill. Adm. Code

103.204(d), (e). Based on Knauer’s June 18, 2008 receipt of the complaint, any answer

or motion was due August 17, 2007.

Section 103.204(d) provides, in pertinent part, that

1

While the Board generally does not have jurisdiction of enforcement of USEPA rules,

Section 9(b) of the Act provides that the federal NESHAPs “are applicable to the state

and enforceable under the Act.” 415 ILCS 5/9(b)(2006). Pursuant to Section 112(b)(l) of

the Clean Air Act (CAA), 42 U.S.C. 7412(b)(l) (2007), the Administrator of the United

States Environmental Protection Agency (U.S. EPA) lists asbestos as a hazardous air

pollutant. Asbestos is a known human carcinogen for which there is no known safe level

of exposure. Comp. para. 18-19.

2

Regulated asbestos containing material (RACM) includes friable asbestos material,

which is any material containing more than 1 percent asbestos that, when dry, can be

crumbled, pulverized, or reduced to powder by hand pressure as defined in Section 6 1.14

1 of Title 40 of the Code of Federal Regulations, 40 C.F.R. 61.141. Comp. para. 12.

---

3

the respondent may file an answer within 60 days after receipt of the

complaint if respondent wants to deny any allegations in the complaint.

All material allegations of the complaint will be taken as admitted if no

answer is filed or if not specifically denied by the answer, unless

respondent asserts a lack of knowledge sufficient to form a belief. 35 Ill.

Adm. Code 103.204(d).

The People base their February 21, 2008 motion to deem facts admitted on

Knauer’s failure to file any answer to their complaint. The Board grants the People’s

motion, based on Knauer’s failure to answer, as well as his failure to file any response in

opposition to the motion on or before March 6, 2008.

The facts alleged by the People in the complaint, and now deemed admitted,

concern activities concerning removal and handling of asbestos and RACM. On or

before January 13, 2006, Mick Morfey retained William Knauer to remove and dispose of

asbestos-containing siding material, asbestos-containing pipe covering, scrap metal, and

waste material located at barracks buildings 266 and 267, situated within the former

Savanna Army Depot, Savanna, Carroll County, Illinois (the Site), prior to the planned

demolition of each barracks building. Knauer removed asbestos-containing transite

siding shingles located on at least one exterior wall of barracks building 267, and

deposited dry friable asbestos-containing waste and refuse within an open dumpster

located at the Site. Comp. para. 1-6.

On January 13, 2006, the Illinois Environmental Protection Agency (IEPA) first

observed the presence of dry broken and crushed asbestos-containing transite siding

shingles and waste resulting from open burning activities near barracks buildings 266 and

267. On January 17, 2006, an IEPA inspector visited the site. During this inspection, he

observed:

1) broken, crushed, dry, asbestos-containing transite material next to barracks

building 267 resulting from the removal of approximately 480 linear feet of

asbestos-containing transite siding located on at least one exterior wall of

building 267;

2) broken, dry, suspect asbestos-containing magblock pipe insulation, floor tile,

and mastic at various locations within building 267 and in an open dumpster

adjacent to the building;

3) suspect asbestos-containing pipe insulation that had been removed from

within barracks building 266; and

4) presence, near the dumpster, of open-burned refuse from building 266,

including but not limited to wooden doors removed from the building, was

open burned near the dumpster. Comp. para. 7-10.

---

4

On or before January 17,2006, respondents engaged in waste disposal activities

within at least one barracks building by sweeping dry asbestos-containing pipe insulation

and debris located on the floor and depositing the material in the open dumpster. On

January 17, 2006, the Illinois EPA inspector conducted friability testing on the dry,

suspect asbestos-containing pipe insulation, transite siding, canvas wrap, floor tile, and

floor tile mastic, from within and adjacent to barracks buildings 266 and 267, and the

open dumpster located at the Site and determined that the dry suspect asbestos-containing

materials could be crumbled, pulverized, or reduced to powder by hand pressure. On that

same day, the inspector also collected eight samples of dry, suspect asbestos-containing

pipe insulation, transite siding, canvas wrap, floor tile, and floor tile mastic, from within

and adjacent to barracks buildings 266 and 267, and the open dumpster located at the

Site. Analytical testing of the eight samples revealed concentrations of chrysotile

asbestos within each sample ranging from 1% to 25%.

3

Comp. para. 11-15.

RACM remained at the Site, until October 30,2006. At that time, Respondents'

contractor completed the remediation at the Site with final clearance. Comp. para. 17.

27.

STANDARD OF DECISION FOR MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate when the pleadings, deposition, admissions on

file, and affidavits disclose that there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Dowd & Dowd, Ltd. v. Gleason,

181 Ill. 2d 460, 483, 693 N.E.2d 358, 370 (1998). In ruling on a motion for summary

judgment, the Board “must consider the pleadings, depositions, and affidavits strictly

against the movant and in favor of the opposing party.”

Id.

Summary judgment “is a

drastic means of disposing of litigation,” and therefore it should be granted only when the

movant's right to relief “is clear and free from doubt.”

Id.

, citing Purtill v. Hess, 111 Ill.

2d 299, 240, 489 N.E.2d 867, 871 (1986). However, a party opposing a motion for

summary judgment may not rest on its pleadings, but must “present a factual basis which

would arguably entitle [it] to judgment.” Gauthier v. Westfall

, 266 Ill. App. 3d 213, 219,

639 N.E.2d 994, 999 (2nd Dist. 1994).

DISCUSSION

Findings of Violation

The Board grants the People’s uncontested motion for summary judgment, finding

that the People are entitled to judgment as a matter of law on the undisputed facts as

alleged in the complaint and deemed admitted. The Board accordingly finds respondent

3

The dry, suspect asbestos-containing pipe insulation, transite siding, canvas wrap, floor

tile, and floor tile mastic, from within and adjacent to barracks buildings 266 and 267,

and the open dumpster located at the Site was friable asbestos material and RACM as

those terms are defined in Section 6 1.14 1 of Title 40 of the Code of Federal

Regulations, 40 C.F.R. 6 1.141. Comp. para. 16.

---

5

Knauer has committed the violations of the Act, Board air rules and the asbestos

NESHAPs as alleged in the complaint, namely:

Count I:

Air Pollution

: Violation of Section 9(a) of the Act, 415 ILCS 5/9(a)

(2006) and Section 201.141 of the Board's air rules, 35 Ill.

Adm. Code 201.141;

Count II:

Failure to Inspect and to Submit Complete and Accurate Notification of

Demolition and Renovation

: Violation of 9.1 (d) of the Act, 415 ILCS

5/9.1(d), and Sections 61. 145(a) and (b) of the NESHAP for asbestos, 40

C.F.R. 61. 145(a) and (b);

Count III:

Failure to Remove and Contain RACM in Compliance with NESHAPs

Requirements

: Violation of Section 9.1 (d) of the Act, 415 ILCS 5/9.l(d),

and Sections 61.l45(c)(1), (c)(2), (c)(6) and (c)(8) and 61. 150(a)(1)(iii),

(iv) and (v) of the NESHAPs for asbestos, 40 C.F.R. 61.145(c)(1), (c)(2),

(c)(6) and (c)(8) and 61.150(a)(1)(iii), (iv) and (v);

Count IV:

Improper Disposal of Regulated Asbestos-Containing Materials

:

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

61. 150(b) of the NESHAP for asbestos, 40 C.F.R. 61.150(b);

Count V:

Failure to Pay Asbestos Fees: Violation of Section 9.13(a) of the Act, 415

ILCS 5/9.13(a); and

Count VI:

Open Burning of Refuse: Violation of Section 9(c) of the Act, 415 ILCS

5/9(c).

Remedy

Upon making a finding of violation, the Board must assess the factors of Section

33(c) of the Act to determine the proper remedy. Section 33(c) of the Act, 415 ILCS

5/33(c) (2006), 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 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;

---

6

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. 415 ILCS 5/33(c)(2006).

Consistent with the directions the Board made in its June 21, 2007 order setting the

complaint for hearing, as part of their motion for summary judgment the People have proposed a

remedy: imposition of a $100,000 civil penalty. The People have supported their request by

discussion of the relevant factors of Sections 33(c) and 42(h) of the Act. Mot. at 10.

The Board, in the main, agrees with the People’s assessment of these factors. The

character and degree of injury to the public was high. Knauer's failure to comply with the work

practice standards of the asbestos NESHAPs in connection with regulated building renovation

activities resulted in the emission of asbestos fibers, a known carcinogen, which threatened

human health and the environment. This was increased by Knauer’s failure to notify IEPA prior

to the commencement of asbestos removal activities at the Site.

See

Mot. at 6. The buildings at

the Site have social and economic value. Id. Knauer’s renovation activities also have value, but

their value is undercut by his failure to conduct them in accordance with the Act and rules. The

Site’s buildings are suitable to the area in which they are located,

Id.

, but the manner in which

Knauer conducted his asbestos removal, handling, and disposal activities were not so suited.

The economic reasonableness and technical practicability of compliance with the Act, Board

rules, and NESHAPs are clear, the latter having been proven through the rulemaking process.

Finally, the Site has been in compliance with applicable requirements since October 30, 2006.

Considering all of these factors, the Board concludes, as do the People, that a civil penalty

is an appropriate remedy for the proven violations. The Board will also issue a cease and desist

order against Mr. Knauer, as is the Board’s usual practice in enforcement cases.

As to the appropriate penalty amount, the People state that Knauer’s violations began on

January 13, 2006 and continued to October 30, 2006. The People calculate that the maximum

statutory penalty to which Knauer is subject under Section 42(a) is $6,400,00, including the

penalty for continuing violations of $10,000 per day.

See

Mot. at 8-9, for calculations relating to

each individual violation. But, after discussion of the Section 42 (h) factors, the People suggest a

civil penalty of $100,000.

Id.

at 10.

Section 42(h) provides, in pertinent part:

In determining the appropriate civil penalty to be imposed. . . the Board is

authorized to 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;

---

7

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;

5.

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," [SEP] 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. 415 ILCS 5/42(h) (2006).

The Board has no reason to disagree with the statements made by the People

concerning these Section 42(h) penalty factors. Mot

.

at 10-11. The Board finds that most

of these factors must be weighed against Knauer in aggravatation of the penalty

assessment. A major factor weighing against Knauer is the number, duration, and gravity

of the violations. These violations lasted a period of over nine months, and involved

release of carcinogenic asbestos fibers into the environment by means including open

burning. There is no evidence of any diligence by Knauer in determining what

requirements might be applicable to the asbestos removal and handling, or in complying

with them. Knauer accrued some unquantified benefit by delaying proper asbestos

abatement, which Section 42(h)(7) requires must be recouped in the penalty assessed.

Knauer did not offer to perform a SEP, which could potentially offset any penalty to be

paid. There are no issues of self-disclosure. The sole factors weighing in Knauer’s favor

are that the People know of no previously adjudicated violations committed by him, and

that the site was remediated, although not until October 30, 2006.

The People do not detail the rationale for their suggestion that $100,000, rather

than the statutory maximum of $6,400,000, is “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”. 415 ILCS 5/42(h)(4) (2006). As this violation is a first offense, the Board sees

---

8

no reason to assess a penalty higher than that recommended by the People. The Board

accordingly assesses a civil penalty of $100,000 for the proven violations.

The major points of this order are summarized below. This constitutes the

Board’s findings of fact and conclusions of law as to respondent Knauer.

Conclusion

1.

The Board finds that William Knauer has violated

Sections 9(a), 9.1(d),

9.13(a) and 9(c) of the

Environmental Protection Act (Act), 415 ILCS

5/9(a), 9.1 (d), 9. 13(a), 9(c) (2006), and Sections 61.145(a) and (b),

61.145(c)(i), (c)(2), (c)(6) and (c)(8), 61.150(b) of the National Emissions

Standards for Hazardous Air Pollutants (NESHAP") for asbestos, 40 C.F.R.

61.145(a) and (b), 61.145(c)(i), (c)(2), (c)(6) and (c)(8), 61.150(b).

2.

William Knauer must pay a civil penalty of $100,000 no later than April

21, 2008, which is the first business day following the 30th day after the

date of this order. William Knauer must pay the civil penalty by certified

check or money order payable to the Illinois Environmental Protection

Trust Fund. The case name, case number, and William Knauer’s Social

Security Number or Federal Employer Identification Number must appear

on the face of the certified check or money order.

3.

William Knauer must submit payment of the civil penalty to:

Illinois Environmental Protection Agency

Fiscal Services Division

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

4.

Penalties unpaid within the time prescribed will accrue interest under Section 42(g) of

the Act, 415 ILCS 5/42(g) (2006), at the rate set forth in Section 1003(a) of the

Illinois Income Tax Act (35 ILCS 5/1003(a) (2006)).

5.

William Knauer must cease and desist from the alleged violations.

IT IS SO ORDERED.

Section 41(a) of the Environmental Protection Act provides that final Board

orders may be appealed directly to the Illinois Appellate Court within 35 days after the

Board serves the order. 415 ILCS 5/41(a) (2006);

see also

35 Ill. Adm. Code

101.300(d)(2), 101.906, 102.706. Illinois Supreme Court Rule 335 establishes filing

requirements that apply when the Illinois Appellate Court, by statute, directly reviews

administrative orders. 172 Ill. 2d R. 335. The Board’s procedural rules provide that

motions for the Board to reconsider or modify its final orders may be filed with the Board

---

9

within 35 days after the order is received. 35 Ill. Adm. Code 101.520;

see also

35 Ill.

Adm. Code 101.902, 102.700, 102.702.

IT IS SO ORDERED.

I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify

that the Board adopted the above order on March 20, 2008, by a vote of 4-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board