ILLINOIS POLLUTION CONTROL BOARD
September 30, 2008
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
GENERAL WASTE SERVICES, INC.,
Respondent.
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PCB 07-45
(Enforcement - Air)
ORDER OF THE BOARD (by G.T. Girard):
On July 2, 2008, General Waste Services, Inc. (General Waste) filed a motion for
summary judgment (Mot.) arguing that there were no issues of material fact. On September 8,
2008, the People of the State of Illinois (People) filed a timely response to the motion (Resp.)
arguing that issues of material fact exist and the matter should be set for hearing. For the reasons
delineated below the Board finds that genuine issues of material fact exist and denies the motion
for summary judgment.
The Board will begin with a discussion of the standard of review that applies to motions
for summary judgment and then recite the procedural history and facts as presented. The Board
will then summarize the arguments of the parties and follow with a discussion of those
arguments.
STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings, depositions, 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.” Dowd & Dowd, Ltd. v. Gleason
, 181 Ill. 2d 460, 483, 693 N.E. 2d 358, 370 (1998),
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).
To prevail on a motion for summary judgment, the movant must prove that no genuine
issue of material fact exists, and, the movant can also prevail on that issue as a matter of law. 35
Ill. Adm. Code § 101.516. The summary judgment determination is made on the basis of an
examination of all materials submitted in the light most favorable to the party opposing the
2
motion for summary judgment. Bagent v. Blessing Care Corp
.
, 224 Ill. 2d 154, 162-63, 862
N.E.2d 985 (2007); Willett v. Cessna Aircraft Co
.
, 366 Ill. App. 3d 360, 368, 851 N.E.2d 626
(1st Dist. 2006).
FACTS
On December 8, 2006, the People filed a one-count complaint (Comp.) against General
Waste. The complaint concerns General Waste’s alleged asbestos abatement project at a two-
story apartment building located at 3701 Memorial Drive in Belleville, St. Clair County. Comp.
at 2. The complaint alleges that General Waste violated the Environmental Protection Act (Act)
(415 ILCS 5/9.1(d) (2006)) and the United States Environmental Protection Agency’s National
Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos (40 C.F.R.
61.145(c)(3), (6))
1
. Comp. at 2-6. According to the complaint, General Waste violated these
provisions by failing to adequately wet regulated asbestos-containing material (RACM) during
its removal at the apartment building and by failing to adequately wet and keep wet all RACM
removed during renovation until such asbestos-containing waste materials were collected and
contained in leak-tight wrapping in preparation for disposal. Comp. at 6.
GENERAL WASTE’S MOTION FOR SUMMARY JUDGMENT
General Waste argues that summary judgment is appropriate as the facts demonstrate that
the alleged violations did not occur. Mot. at 3. General Waste maintains that the complaint
alleges that General Waste failed to adequately wet the RACM material while the material was
being removed on August 4, 2005. Mot. at 1. General Waste asserts that the material being
removed on August 4, 2005 did not contain asbestos and was not RACM.
Id
. General Waste
bases this assertion on two samples of material collected by the Illinois Environmental Protection
Agency (IEPA) inspector. Mot. at 1, Exh. A. Those two samples tested negative for asbestos-
containing material.
Id
. According to General Waste, a third sample, which did test positive,
was removed from a stored drum of wetted material previously removed from another location in
the building remote from the area inspected on August 4, 2005. Mot. at 2.
General Waste argues because the material collected and sampled from the actual work
area was not ACM, there is no basis for an allegation that Section 9(a) of the Act (415 ILCS
5/9(a) (2006))
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was violated. Mot. at 2. General Waste asserts that the IEPA inspector noted
that “the containment that General Waste had constructed was excellent” and the integrity of
containment assures that any emissions of ACM are controlled during the abatement process.
Mot. at 2, Exh. A.
1
The NESHAP for asbestos (40 C.F.R. 61.145(c)(3), (6)) was promulgated by the United States
Environmental Protection Agency under Section 112 of the federal Clean Air Act (CAA) (42
U.S.C. § 7412). Section 9.1(d)(1) of the Act prohibits anyone from violating any federal
regulation adopted under Section 112 of the CAA. Consequently, any violation of the asbestos
NESHAP is also a violation of Section 9.1(d)(1) of the Act.
See
415 ILCS 5/9.1(d) (2006).
2
The Board notes that the complaint does not allege a violation of Section 9(a) of the Act (415
ILCS 5/9(a) (2006) but only of Section 9.1(d) of the Act (415 ILCS 5/9.1(d) (2006).
3
General Waste maintains that this is a proper case for summary judgment because the
alleged failure to adequately wet ACM prior to removal is inapplicable, as the material being
removed did not contain ACM. Mot. at 3. General Waste asserts this is an indisputable fact as
the IEPA’s own laboratory reports demonstrate that the material was not ACM.
Id
. General
Waste argues that the alleged violations cannot stand given that the material was not ACM.
Id
.
PEOPLE’S RESPONSE TO THE MOTION FOR SUMMARY JUDGMENT
The People argue that genuine issues of material fact exist in this proceeding based on the
pleadings and the exhibits; thus, the People ask that the Board deny the motion for summary
judgment. Resp. at 2. The People assert that Farmer Environmental Services (Farmer
Environmental) performed a building survey on May 11, 2005. Resp. at 3 and Exh. 1. The
People claim that Farmer Environmental identified and sampled 28 suspect building materials.
Id
. According to the People, all apartments in the building contained drywall ceilings covered
with textured spray material that Farmer Environmental classified and sampled. Resp. at 3-4,
Exh. 1 and 2. The seven samples were tested for asbestos and five of the samples tested positive
for 25% total asbestos and two tested positive for 20% total asbestos. Resp. at 4, Exh. 1.
The People assert that on August 3, 2005, General Waste began removing the drywall
ceiling material and placed the material in lined fiber drums. Resp. at 4, Exh. 2. The drums
were moved to a room located on the first floor at the end of the day on August 3, 2005.
Id
. The
People claim that on August 4, 2005, the removal of drywall ceiling material continued and the
material was placed in lined fiber drums. Resp. at 4, Exh. 3.
The People further assert that the IEPA inspector inspected the property on August 4,
2005, and took three samples of material being removed, two in the room where the material was
being removed and a third from the lined fiber drums. Resp. at 4-5, Exh. 3 and 4. The People
concede that the test results for the two samples from the room at which General Waste was
removing the material were a non-detect for asbestos. Resp. at 5. However, the People argue
that the third sample tested positive for one to five percent chrysotile asbestos and the material
was not adequately wet.
Id
.
The People argue that a genuine issue of material fact exists as to whether the material
removed by General Waste was ACM. Resp. at 5. The People assert that General Waste’s
argument that the material was not ACM is flawed because the argument is not based on the
evidence available.
Id
. The People maintain that General Waste relies on one set of samples
taken by the IEPA inspector to support the position that the material was not ACM, but earlier
testing classified the ceiling material as a homogenous area of ACM containing 20% to 25%
asbestos. Resp. at 5-6. The People opine that the existence of that second report contradicts
General Waste’s argument. Resp. at 6.
The People claim that ten samples of ceiling material were taken at the site and eight of
the ten tested positive for a regulated amount of asbestos. Resp. at 6. The People assert that
General Waste’s assertion that the material was not ACM can be rebutted and the pleadings on
file along with exhibits to the response establish that there exists a genuine issue of material fact.
Id
. Therefore, the People maintain summary judgment should be denied.
Id
.
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DISCUSSION
The exhibits attached to both the motion and the response indicate that there is a genuine
issue of material fact concerning the material being removed on August 4, 2005. Although two
samples tested non-detect for asbestos, other evidence indicates that asbestos was present
throughout the building. In fact, eight samples, according to the People, tested positive for
asbestos. Further, according to the facts as presented by the People, one sample taken on August
4, 2005, tested positive for asbestos. Thus, General Waste has presented facts that if proven
would appear to refute the allegations of the complaint; however, facts do exist that if proven
could lead to a finding of violation. Examining all materials submitted in the light most
favorable to the People (Bagent, 224 Ill. 2d at 162-63; Willett, 366 Ill. App. 3d at 368), the Board
cannot find that General Waste is entitled to judgment as a matter of law. The Board therefore
finds that genuine issues of material fact exist and summary judgment is not appropriate. The
Board denies the motion for summary judgment and directs the parties to proceed to hearing.
CONCLUSION
The motion for summary judgment is denied as the Board finds that genuine issues of
material fact exist and summary judgment is not appropriate. The Board directs the parties to
proceed to hearing on the matter.
IT IS SO ORDERED.
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above order on September 30, 2008, by a vote of 4-0.
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
