RECEIVED
CLERK'S OFFICE
MAY 1 3 2008
STATE OF
ILUNOIS
Pollution Control Board
Lisa Madigan
NI"FORNEY GENERAL,
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
John T. Therriault
Assistant Clerk of the Board
Illinois Pollution Control Board
James R. Thompson Center, Ste. 11-500
100 West Randolph
Chicago, Illinois 60601
May 9, 2008
Re:
People v. Gelco Management & Developers LLC
Dear Clerk:
Enclosed for filing please find the original and one copy of a Notice of Filing, Appearance
and Complaint in regard to the above-captioned matter. Please file the originals and return file-
stamped copies to me in the enclosed envelope.
Thank you for your cooperation and consideration.
Very truly yours,
Stephe
?
Janasie
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
SJJ/pjk
Enclosures
500 South Second Street, Springfield, Illinois 62706
•
(217) 782-1090
• -
FEY: (217)
785-2771
•
?
Fax: (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601
•
(312) 814-3000
•
TTY: (312) 814-3374
•?
Fax: (312) 814-3806
1001 East Main, Carbondale, Illinois 62901 • (618) 529-6400 • TTY: (618) 529-6403 • Fax: (618) 529-6416
RECEIVED
CLERK'S OFFICE
MAY 1
3 2008
STATE OF ILLINOIS
Pollution
Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF
ILLINOIS,
Complainant,
A9
;4
I
vs.
?
PCB No. v
(Enforcement)
GELCO MANAGEMENT
&
DEVELOPERS LLC, an Illinois
limited liability
corporation,
Respondent.
NOTICE OF
FILING
To: GELCO MANAGEMENT & DEVELOPERS LLC.
an Illinois limited liability corporation
do Joshua Bradley
Attorney at Law
1010 W. DeYoung Street
Marion, IL 62959
PLEASE TAKE NOTICE that on this date I mailed for filing with the Clerk of the Pollution
Control Board of the State of Illinois, a COMPLAINT, a copy of which is attached hereto and
herewith served upon you. Failure to file an answer to this Complaint within 60 days may have
severe consequences. Failure to answer will mean that all allegations in this Complaint will be
taken as if admitted for purposes of this proceeding. If you have any questions about this
procedure, you should contact the hearing officer assigned to this proceeding, the Clerk's Office
or an attorney.
1
FURTHER, please take notice that financing may be available, through the Illinois
Environmental Facilities Financing Act, 20 ILCS 3515/1 (2006), to correct the pollution alleged in
the Complaint filed in this case.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
Ste:,'
?
ianasie
Ass stant Attorney General
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: May 9, 2008
2
CERTIFICATE OF SERVICE
I hereby certify that I did on May
9, 2008, send by certified mail, with postage thereon fully
prepaid, by depositing in a United States Post Office Box a true and correct copy of the
following instruments entitled NOTICE OF FILING, ENTRY OF APPEARANCE and
COMPLAINT:
To: GELCO MANAGEMENT & DEVELOPERS LLC.
an Illinois limited liability corporation
do Joshua Bradley
Attorney at Law
1010 W. DeYoung Street
Marion, IL 62959
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s):
To:?
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite
11-500
100 West Randolph
Chicago, Illinois 60601
Step er1
,
J.
?
sie
Assistant ttorney General
This filing is submitted on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD?
RE
C
EIVE la
PEOPLE OF THE STATE OF
)
ILLINOIS,
)
Complainant,
vs.
)
)
GELCO MANAGEMENT
&
)
DEVELOPERS LLC,
an
Illinois
)
limited liability
corporation,
)
Respondent.
)
C
LERK'S OFFICE
MAY 1 3 2008
STATE OF ILLINOIS
Pollution Control Board
PCB No.
DC/ 4?
CC
(Enforcement)
ENTRY OF APPEARANCE
On behalf of the Complainant, PEOPLE OF THE STATE OF
ILLINOIS, STEPHEN J.
JANASIE, Assistant Attorney General of the State of Illinois, hereby enters his appearance as
attorney of record.
Respectfully submitted,
PEOPLE OF THE STATE OF
ILLINOIS,
LISA MADIGAN
Attorney General of the
State of Illinois
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Divisio
BY:
Stephen Ja sie
Environ ent Bureau
Assistant Attorney General
500 South Second Street
Springfield, Illinois
62706
217/782-9031
Dated: May
9, 2008
ST
ATE
OF ILLINOIS
PEOPLE OF THE STATE OF
Pollution Control Board
ILLINOIS, ex. rel. LISA MADIGAN,
Attorney General of the State of Illinois,
Complainant,
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
C
LERKS
OFFICE
FRANKLIN COUNTY, ILLINOIS
?
MAY 13
2008
VS.
?
PCB
No. 08-
%9
GELCO MANAGEMENT
&
DEVELOPERS LLC, an Illinois
limited liability corporation,
Respondent.
COMPLAINT
The PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney General of
the State of Illinois, on her own motion, complains of the Respondent, GELCO
MANAGEMENT & DEVELOPERS LLC, an Illinois limited liability corporation, as follows:
COUNT
I
VIOLATIONS OF THE NATIONAL EMISSIONS STANDARDS FOR ASBESTOS
1.
This count is brought on behalf of the People of the State of Illinois, ex rel. Lisa
Madigan, the Attorney General of the State of Illinois, on her own motion and at the request of
the Illinois Environmental Protection Agency ("Illinois EPA"), pursuant to Section 31 of the
Illinois Environmental Protection Act ("the Act"), 415 ILCS 5/31 (2006).
2.
The Illinois EPA is an agency of the State of Illinois created by the Illinois
General Assembly in Section 4 of the Act, 415 ILCS 5/4 (2006), and charged,
inter alia,
with the
duty of enforcing the Act.
3.
The Respondent, GELCO MANAGEMENT & DEVELOPERS, LLC, is an
Illinois limited liability corporation in good standing.
4.
GELCO MANAGEMENT & DEVELOPERS, LLC, is the owner of property
located at 350 Fifth Street in Benton, Franklin County, Illinois, which contains a building
formerly known as the Lincoln School.
5.
Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1(d)(1) (2006) provides as follows:
No person shall:
(1) violate any provisions of Sections 111, 112, 165 or 173 of the Clean
Air Act, as now or hereafter amended, or federal regulations adopted
pursuant thereto;
6.
The regulations on National Emission Standards for Hazardous Air Pollutants
("NESHAP") for asbestos, 40 CFR Part 61, Subpart M, were adopted pursuant to Section 112 of
the Clean Air Act, 42 USC §7412. Asbestos is regulated as a hazardous air pollutant because it
is a carcinogen. Regulated asbestos-containing materials contain more than one percent asbestos
and are generally "friable," which means such materials, when dry, can be crumbled, pulverized,
or reduced to powder by hand pressure.
7.
40 CFR §61.141 provides the following pertinent definitions:
Adequately wet means sufficiently mix or penetrate with liquid to prevent the release of
particulates. If visible emissions are observed coming from asbestos-containing material,
then that material has not been adequately wetted. However, the absence of visible
emissions is not sufficient evidence of being adequately wet.
Category I nonfriable asbestos-containing material (ACM) means asbestos-containing
packings, gaskets, resilient floor covering, and asphalt roofing products containing more
than 1 percent asbestos as determined using the method specified in appendix E, subpart
E, 40 CFR part 763, section 1, Polarized Light Microscopy.
Category II nonfriable ACM means any material, excluding Category I nonfriable ACM,
containing more than 1 percent asbestos as determined using the methods specified in
appendix E, subpart E, 40 CFR part 763, section 1, Polarized Light Microscopy that,
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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... .
Friable asbestos material means any material containing more than 1 percent asbestos as
determined using the method specified in appendix E, subpart E, 40 CFR part 763 section
1, Polarized Light Microscopy, that, when dry, can be crumbled, pulverized, or reduced to
powder by hand pressure. 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.
In poor condition means the binding of the material is losing its integrity as indicated by
peeling, cracking, or crumbling of the material.
Nonfriable asbestos-containing material means any material containing more than 1
percent asbestos as determined using the method specified in appendix E, subpart E, 40
CFR part 763, section 1, Polarized Light Microscopy, that, when dry, cannot be
crumbled, pulverized, or reduced to powder by hand pressure.
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.
Regulated asbestos-containing material (RACM) means (a) Friable asbestos material, (b)
Category I nonfriable ACM that has become friable, ©) Category I nonfriable ACM that
will be or has been subjected to sanding, grinding, cutting, or abrading, or (d) Category II
nonfriable ACM that has a high probability of becoming or has become crumbled,
pulverized, or reduced to powder by the forces expected to act on the material in the
course of demolition or renovation operations regulated by this subpart.
Remove means to take out RACM or facility components that contain or are covered with
RACM from any facility.
Resilient floor covering means asbestos-containing floor tile, including asphalt and vinyl
floor tile, and sheet vinyl floor covering containing more than 1 percent asbestos as
determined using polarized light microscopy according to the method specified in
appendix E, subpart E, 40 CFR part 763, Section 1, Polarized Light Microscopy.
-3-
8.
?
40 CFR §61.145 provides in pertinent part as follows:
Standard for demolition and renovation.
(a)
Applicability.
To determine which requirements of paragraphs (a), (b),
and ©) 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 ©) of this section apply to each owner
or operator of a demolition or renovation activity, including the removal of
RACM as follows:
( I )
?
In a facility being demolished, all the requirements of
paragraphs (b) and ©) of this section apply, except as provided in
paragraph (a)(3) of this section, if the combined amount of RACM
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, or
(ii)?
At least 1 cubic meter (35 cubic feet) off facility
components where the length or area could not be
measured previously.
b)
Notification requirements.
Each owner or operator of a demolition or
renovation activity to which this section applies shall:
(1) Provide the Administrator with written notice of intention to
demolish or renovate. Delivery of the notice by U.S. Postal
Service, commercial delivery service, or hand delivery is
acceptable.
©) Procedures for asbestos emission control.
Each owner or operator of a
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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....
(6) For all RACM, including material that has been removed or stripped:
(I) Adequately wet the material and ensure that it remains wet until
collected and contained or treated in preparation for disposal in
accordance with §61.150; and
(ii)
Carefully lower the material to the ground and floor, not
dropping, throwing, sliding, or otherwise damaging or disturbing
the material.
(iii)
Transport the material to the ground via leak-tight chutes or
containers if it has been removed or stripped more than 50 feet
above ground level and was not removed as units or in sections.
(iv)
RACM contained in leak-tight wrapping that has been
removed in accordance with paragraphs (c)(4) and (c)(3)(i)(B)(3)
of this section need not be wetted.
(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 on-site 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. Every 2 years, the trained on-site individual shall
receive refresher training in the provisions of this regulation. The required
training shall include as a minimum: applicability; notifications; material
identification; control procedures for removals including, at least, wetting,
local exhaust ventilation, negative pressure enclosures, glove-bag
procedures, and High Efficiency Particulate Air (HEPA) filters; waste
disposal work practices; reporting and recordkeeping; and asbestos
hazards and worker protection. Evidence that the required training has
been completed shall be posted and made available for inspection by the
Administrator at the demolition or renovation site.
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9.
40 CFR §61.150 provides in pertinent part as follows:
(b) All asbestos-containing waste material shall be deposited as soon as is
practical by the waste generator at:
(1)
A waste disposal site operated in accordance with the
provisions of §61.154, or
(2)
An EPA-approved site that converts RACM and asbestos-
containing waste material into nonasbestos (asbestos-free) material
according to the provisions of §61.155.
(3) The requirements of paragraph (b) of this section do not apply
to Category I nonfriable ACM that is not RACM.
10.
The Illinois Department of Public Health has not licensed the Respondent to
remove, handle or disturb regulated asbestos-containing material ("RACM").
11.
During June 2007, the Respondent commenced the demolition of the former
Lincoln School and thereby disturbed regulated asbestos-containing materials, including pipe
insulation, transite and floor tile. At the time of the Illinois EPA's inspection most of the school
was demolished.
12.
The Lincoln School is a "facility" and GELCO MANAGEMENT &
DEVELOPERS LLC is an "owner" and "operator" of a "demolition" as these terms are defined
at 40 CFR 61.141.
13.
On June 27, 2007, the Illinois EPA responded to a complaint regarding the
demolition of the Lincoln School. During this investigation, there were substantial amounts
suspected asbestos-containing materials within the demolished facility, scattered throughout the
site and within uncovered roll off waste containers. At the request of the Illinois EPA, the
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Respondent halted the demolition operation.
14.
The Illinois EPA observed approximately 108 cubic feet of pipe insulation,
transite and floor tile within a dumpster located on the site. The Illinois EPA estimated that at
least 400 linear feet of pipe insulation had been disturbed during demolition activities. In
addition, the Illinois EPA observed two overhangs approximately 558 square feet each that were
covered with transite that had been mostly demolished.
15.
On June 29, 2007, the Illinois EPA obtained 13 samples of pipe insulation at the
Lincoln School, and subsequently determined through laboratory analyses that all of the samples
contained greater than 1 percent asbestos (ranging from 50 percent to 83 percent asbestos). The
amount of friable pipe insulation present at the facility exceeded 260 linear feet. Thus, the pipe
insulation was "regulated asbestos-containing material" as that term is defined at 40 CFR 61.141
and therefore the demolition project was subject to the asbestos NESHAP work practices and
other requirements. .
15.
On June 29, 2007, the Illinois EPA also obtained 3 samples of transite and 2
samples of floor tile. The transite sampled contained approximately 20 percent asbestos while
the floor tile contained approximately 5 percent asbestos. The transite and floor tile were in
"poor condition" as that term is defined in 40 CFR 61.141, rendered friable during demolition
activities and were therefore RACM.
16.
The owner and operator of a demolition subject to the asbestos NESHAP
regulations is required by 40 CFR 61.145(b)(1) to provide notification of the demolition at least
10 working days prior to commencing such activity. GELCO MANAGEMENT &
DEVELOPERS LLC did not provide written notification to the Illinois EPA prior to the
-7-
commencement of the demolition of the facility, thereby violating 40 CFR 61.145(b)(1) and
Section 9.1(d) of the Act, 415 ILCS 5/9.1(d) (2006).
17.
The Respondent failed to remove all regulated asbestos-containing materials prior
to the commencement of the demolition operation and
to utilize equipment or methods to
properly control the emission of asbestos. The Respondent failed to adequately wet and keep wet
all regulated asbestos-containing materials removed or disturbed during the demolition; failed to
have at least one representative trained in the provisions of the NESHAP and the means of
compliance with the NESHAP; and failed to deposit asbestos-containing waste material as soon
as practical in an appropriate waste disposal site, in violation of Section 9.1(d) of the Act, 415
ILCS 9.1(d) (2006), and 40 CFR §§61.145(c)(6), 61.145 (c)(8) and 61.150(b).
PRAYER FOR RELIEF
WHEREFORE, the Complainant, the People of the State of Illinois, respectfully requests
that this Board grant the following relief:
A.
Authorizing a hearing in this matter at which time the Respondent will be required
to answer the allegations herein;
B.
Finding that the Respondent has violated the Act and regulations as alleged
herein;
C.
Ordering Respondent to cease and desist from any further violations of the Act
and associated regulations;
D.
Pursuant to Section 42(a) of the Act, 415 ILCS 5/42(a) (2004), impose a civil
penalty of not more than the statutory maximum; and
E.
Grant such other and
further relief as the Board deems appropriate.
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COUNT
H
AIR POLLUTION VIOLATIONS
1-17. Complainant realleges and incorporates herein by reference paragraphs I through
17 of Count I as paragraphs 1 through 17 of this Count II.
18.
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), provides:
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
[Pollution Control] Board under this Act;
19.
Section 201.141 of the Board's Air Pollution Regulations, 35 Ill. Adm. Code
201.141, 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.
20.
Section 3.115 of the Act, 415 ILCS 5/3.115 (2006), provides the following
definition:
'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.
-9-
21.
By failing to remove all regulated asbestos-containing material prior to the
demolition, to utilize equipment or methods to properly control the emission of asbestos, and to
collect and contain all regulated asbestos-containing waste material in leak-tight wrapping in
preparation for disposal as soon as practicable at a site permitted to accept such waste, the
Respondent threatened the emission of contaminants into the environment so as to tend to cause
air pollution and thereby violated Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and Section
201.141 of the Board's Air Pollution Regulations, 35 Ill. Adm. Code 201.141.
PRAYER FOR RELIEF
WHEREFORE, the Complainant, the People of the State of Illinois, respectfully requests
that this Board grant the following relief:
A.
Authorizing a hearing in this matter at which time the Respondent will be required
to answer the allegations herein;
B.
Finding that the Respondent has violated the Act and regulations as alleged
herein;
C.
Ordering Respondent to cease and desist from any further violations of the Act
and associated regulations;
D.
Pursuant to Section 42(a) of the Act, 415 ILCS 5/42(a) (2004), impose a civil
penalty of not more than the statutory maximum; and
E.
Grant such other and further relief as the Board deems appropriate.
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COUNT III
NONPAYMENT OF STATUTORILY REQUIRED FEES
1-17. Complainant realleges and incorporates herein by reference paragraphs 1 through
17 of Count I as paragraphs 1 through 17 of this Count III.
20.?
Section 9.13(b) of the Act, 415 ILCS 5/9.13(b) (2006) provides as follows:
(b) If demolition or renovation of a site has commenced without proper filing of
the 10-day Notice, the fee is double the amount otherwise due. This doubling of
the fee is in addition to any other penalties under this Act, the federal NESHAP,
or otherwise, and does not preclude the Agency, the Attorney General, or other
authorized persons from pursuing an enforcement action against the owner or
operator for failure to file a 10-day Notice prior to commencing demolition or
renovation activities.
18. GELCO MANAGEMENT & DEVELOPERS LLC has not paid the statutory fee
of three hundred dollars ($300.00) required by Section 9.13 of the Act, 415 ILCS 5/9.13 (2006).
19.?
By failing to pay the statutorily required fee, the Respondent has violated Section
9.13 of the Act, 415 ILCS 5/9.13 (2006).
PRAYER FOR RELIEF
WHEREFORE, the Complainant, the People of the State of Illinois, respectfully requests
that this Board grant the following relief:
A.
Authorizing a hearing in this matter at which time the Respondent will be required
to answer the allegations herein;
B.
Finding that the Respondent has violated the Act and regulations as alleged
herein;
C.?
Ordering Respondent to cease and desist from any further violations of the Act
and associated regulations;
D.
Pursuant to Section 42(a) of the Act, 415 ILCS 5/42(a) (2004), impose a civil
penalty of not more than the statutory maximum; and
E.
Grant such other and further relief as the Board deems appropriate.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
ex rel.
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW
J.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY:
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
Of Counsel:
Stephen J. Janasie
Assistant Attorney General
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated: May 9, 2008
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