BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
GENERAL WASTE SERVICES, INC.,
Respondent.
RECEIVED
CLERK'S OFFICE
JUL 0 2 2008
(Enforcement)
PCB No. 07-45
Pollution
STATE OF
Control
ILLINOISBoard
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
Respondent, GENERAL WASTE SERVICES, INC. (hereinafter "GWS"), by its
attorney, Thomas J. Immel, of Feldman, Wasser Draper and Benson, hereby moves for
Summary Judgment in the above entitled cause, and, in support of said motion, states as
follows:
1.
This Motion for Summary Judgment is brought pursuant to this Board's
Procedural Rule 101.516.
2.
This case has not yet been set for hearing.
3.
The Complaint in this cause alleges that Respondent failed to adequately wet
RACM material
while
it was being removed on August 4, 2005.
4.
The allegedly "too dry" ceiling material being removed by Respondent on
August 4, 2005 did not contain asbestos, and was not RACM, as confirmed by two (2)
samples of said ceiling material collected by the EPA Inspector on that date and tested
FELDMAN, WASSER
DRAPER & COX
1307 S. Seventh St.
Post Office Box 2148
Springfield, IL 62705
217/544-3403
Printed on Recycled Paper
by EPA. EPA's lab reports that the test results were Negative for asbestos-containing
material. During the course of discovery in this matter, Complainant has turned over to
Respondent the Chain of Custody and laboratory results for the three (3) samples collected
by its Inspector on August 4, 2005, a true copy of which is attached to this Motion as
Exhibit A and incorporated by reference herein as though fully set forth.
5.
The sole sample collected by the EPA
Inspector
that did test positive for ACM
was collected from a stored drum of wetted material previously removed from another
location in the building at a time and place remote from the area inspected on August 4,
2005, at which time and place the EPA Inspector was not even present. Nothing about the
belated condition of the drummed material would or could speak to its degree of "wetness"
at the time the material was gathered and placed in the drum. See Exhibit A attached
hereto.
6.
Because the material collected and sampled in the actual work area was not
ACM, and because the ACM sample found in the disposal drum in the waste storage area
on site was already properly containerized for disposal, there is no conceivable basis for
the Complaint's assertion that Section 9(a) of the Act might be violated, particularly in light
of the fact that the Agency Inspector's report states that
"the containment that General
Waste had constructed was excellent".
(Quotation from page 2 of Memorandum
prepared by EAP Inspector on August 17, 2005 and turned over to Respondent during
discovery.) Of course, it is the integrity of the containment that assures that any emissions
of ACM are controlled/captured during the abatement process.
FELDMAN, WASSER
DRAPER & COX
1307 S. Seventh St.
Post Office Box 2148
Springfield, IL 62705
217/544-3403
Printed on Recycled Paper
2
7.
Per this Board's Procedural Rule 101.516(b), upon a demonstration that there
is no genuine issue of material fact, the Board will grant summary judgment to a moving
party; and it has often done so. See, for example,
Outboard Marine Corp. v. Liberty
Mutual Ins. Co.,
154 III.2d 90, 607 N.E.2d 1204 (1992);
McDonald's Corporation v. Illinois
EPA,
PCB 04-14 (2004);
IEPA v.
Ted Harrison & Gerald Gill,
PCG 05-08 (2006).
8.
Of course, as the Board has noted in its opinions, summary judgment is
indeed a drastic means of disposing of litigation, and only to be applied in a proper case.
This is a proper case because it is axiomatic that the alleged failure to adequately wet
down ACM prior to removal is an inapplicable regulatory requirement where the material in
question is not ACM, the indisputable fact in this case as demonstrated by EPA's own
laboratory report; and the accompanying alleged 9(a) violation is bottomed on the claim
that it was indeed ACM that Respondent supposedly failed to adequately moisten prior to
removal. Thus,
all
of the alleged violations evaporate in the face of the disclosure that
there was no ACM in the first place. There is indeed no material issue of fact in dispute
because this is not an "asbestos case" to begin with. Respondent is entitled to summary
judgment as a matter of law.
WHEREFORE,
Respondent prays that it be granted Summary Judgment, that the
. above entitled Complaint be dismissed with prejudice, and that Respondent be awarded its
costs.
Respectfully submitted,
GENE?
keE SER ICES,?
., Respondent
Thomas
daer"
J. Immel, Atty. Reg. #1301209
FELDMAN, WASSER
DRAPER & COX
1307 S. Seventh St.
Post Office Box 2148
Springfield, IL 62705
217/544-3403
Printed on Recycled Paper
By:
3
CERTIFICATE OF SERVICE
The undersigned, of FELDMAN, WASSER, DRAPER & COX, hereby certifies that a
copy of the foregoing Motion for Summary Judgment was served upon each of the
addressees hereinafter set forth by enclosing the same in an envelope plainly addressed
to each of the said addresses, with postage fully prepaid, and depositing same in a U.S.
Mail Box in Springfield, Illinois on this 30th day of June, 2008:
Michael D. Mankowski
Illinois Attorney General's Office
Environmental Bureau
500 South
2nd Street
Springfield, IL 62706
and that the original and ten (10) copies were mailed by First Class Mail, with postage fully
prepaid, to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, IL 60601
Thomas J. Immel
FELDMAN, WASSER
DRAPER & COX
1307 S. Seventh St.
Post Office Box 2148
Springfield, IL 62705
217/544-3403
Printed on Recycled Paper
4
Chain of Custody
Laboratory: STAT Analysis
Contact: Joe Zappa
Address: 3355. West Harrison, Suite B
Chicago, II. 60612
Phone:
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Disposition of Samples: Return to Dale Halford, IEPA, P.0 Box 19276, Springfield, IL 62794-9276
Remarks, Special Instructions: Please fax results to Joe Zappa @ 618.346.5155
STAT
Analysis
2201
West Campbell
Corporation
Park Drive Chicago, IL 60612-3547
&
Tel: (312) 733-0551 Fax: (312) 733-2386 STATinfo@STATAnalysis.com
NYLAP Accreditation # 101202-0 ; AIH.4 Accreditation # 101160
AIHK
Environmental Lead
and industrial Hygiene
ACCREDITED
LABORATORY
ASBESTOS ANALYSIS BY POLARIZED LIGHT MICROSCOPY
Method: EPA-600/M4-82-020
Illinois Environmental Protection Agency
P.O. Box 19276
Springfield, IL 627949276
Phone: (217)-557-2478
Fax: (217)-782-1875
Client Reference:
Date Received: 08/10/2005
Location: Memorial
Hospital Apt Complex Belleville, IL Date
Analyzed: 08/10/2005
STAT Batch No.: 260568
Date Reported: 08/10/2005
STAT Client No.: 1977
Turn Around Time: 24 Hour
Laboratory
Sample
Client Sample
Number
Asbestos Components
/?
(%)
Non-Asbestos Components
(%)
260568001
JZ 8/4/05 01
ND
Cellulose 10-15%
Binder 85-90%
260568002
JZ 8/4/05 02
ND
Binder 99-100%
260568003
JZ 8/4/05 03
Chrysotile 1-5%
Binder 95-99%
ND = Asbestos Not Detected.
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NA = Not Analyzed
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NS = Not Submitted
The use of the NVLAP logo does not imply endorsement by NVLAP or any agency of the US Government.
The information contained in (his report and any attachments is confidential information intended only for the use of the individual or entities named above. The
results of this report relate only to the samples tested. If you have received this report in error, please notify us immediately by phone. This report shall not be
reproduced, except in its entirety, unless written approval has been obtained from the laborator
Page 1 of 1
Analyzed by Name :
Date:
08/10/2005