BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois,
Complainant,
vs.
AL-ALGONGUIN APARTMENTS, LLC,
an Indiana limited liability company;
ALGONQUIN APARTMENTS, LLC, an
Indiana limited liability company; and
ALGONQUIN MANAGEMENT, LLC, a
Delaware limited liability company,
Respondents.
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PCB 09':
(Enforcement-Air)
TO:
Eddie Tapper
MAC Property Management
214 East Armour Blvd.
Kansas City, Missouri 64111
NOTICE OF FILING
(VIA ELECTRONIC FILING)
Member/Manager
of Respondents
AL-Algonquin Apartments, LLC;
Algonquin Apartments, LLC; and
Algonquin Management, LLC
PLEASE TAKE NOTICE that today I have filed with the Office
of the Clerk of the
Illinois Pollution Control Board by electronic filing the following Complaint, a copy
of which is
attached and hereby 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 the 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.
Electronic Filing - Received, Clerk's Office, December 15, 2008
* * * * * PCB 2009-039 * * * * *
NOTIFICATION
YOU ARE HEREBY NOTIFIED that financing may be available through the Illinois Environmental
Facilities Financing Act [20 ILCS 3515/1
et seq.]
to correct the alleged violation.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General
of the State of Illinois
BY:
Andr~r:LJ-¥
Assistant Attorney General
Andrew Armstrong
Assistant Attorney General
Environmental Bureau
69 West Washington Street, 18th Floor
Chicago, Illinois 60602
312-814-0660
DATE: December 15, 2008
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Electronic Filing - Received, Clerk's Office, December 15, 2008
* * * * * PCB 2009-039 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN, Attorney
General
of the State of Illinois,
Complainant,
v.
AL-ALGONGUIN APARTMENTS, LLC,
an Indiana limited liability company;
ALGONQUIN APARTMENTS, LLC, an
Indiana limited liability company; and
ALGONQUIN MANAGEMENT, LLC, a
Delaware limited liability company,
Respondents.
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PCB 09-
(Enforcement-Air)
COMPLAINT
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
ex rei.
LISA MADIGAN,
Attorney General
of the State of Illinois, on her own motion and at the request of the Illinois
Environmental Protection Agency, complains
of the Respondents, AL-ALGONGUIN
APARTMENTS, LLC; ALGONQUIN APARTMENTS, LLC; and ALGONQUIN
MANAGEMENT, LLC, as follows:
COUNT I
AIR POLLUTION-RELEASE OF ASBESTOS FIBERS
1.
This Count 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 Environmental Protection Agency ("Illinois EPA"), pursuant to Section 31
of the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/31 (2006).
Electronic Filing - Received, Clerk's Office, December 15, 2008
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2.
The Illinois Environmental Protection Agency ("Illinois EPA") is an
administrative agency established by the Illinois General Assembly in Section 4
of the Act, 415
ILCS 5/4, and charged,
inter alia,
with the duty of enforcing the Act.
3.
At all times relevant to this Complaint, Respondent Algonquin Apartments, LLC
("Algonquin Apartments") was and is an Indiana limited liability company in good standing with
the state
of Illinois. At all times relevant to this Complaint, Respondent AL-Algonquin
Apartments, LLC ("AL-Algonquin") was and is an Indiana limited liability company in good
standing with the state
of Illinois. At all times relevant to this Complaint, Respondent Algonquin
Management, LLC ("Algonquin Management") was a Delaware limited liability company.
4.
At all times relevant to this Complaint, Algonquin Apartments owned a
residential apartment building located at 1605 East
50
th
Street in Chicago, Cook County, Illinois
(the "Building"). At all times relevant
to this Complaint, AL-Algonquin served as the managing
member
of Algonquin Apartments. At all times relevant to this Complaint, Algonquin
. Management served as manager
of the Building.
5.
On dates better known to the Respondents, but on and prior to May 7, 2007, the
Respondents were engaged in a renovation
of the Building (the "Renovation"). The Renovation
involved the removal
of floor tiles ("Floor Tiles") from the first through seventh floors of the
Building. The Floor Tiles were asbestos-containing material.
6.
Approximately 1,900 square feet of Floor Tiles were removed from the floors of
the Building during the Renovation.
7.
On dates better known to the Respondents, but on or prior to May 7, 2007, the
Respondents commissioned an asbestos inspection. Upon information and belief, this inspection
revealed that the Floor Tiles were asbestos-containing materials. Upon information and belief,
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this inspection also revealed that the mastic - the glue used to affix the Floor Tiles to the floor -
was asbestos containing material.
8.
On May 7, 2007, an Illinois EPA inspector (the "Inspector") inspected the
Building. A sample of the Floor Tiles taken from the third floor of the Building by the Inspector
on May
7, 2007 tested positive for 17.9% asbestos content. A sample of the Floor Tiles taken
from the seventh floor of the Building by the Inspector on May 7, 2007 tested positive for 21.6%
asbestos content. A sample
of mastic taken from the seventh floor of the Building by the
Inspector on May
7, 2007 tested positive for 15.8% asbestos content.
9.
During this inspection, the Inspector observed several piles of the Floor Tiles on
the seventh floor
of the Building. The Floor Tiles in the piles were dry. The Inspector also
observed a dumpster located outside the rear
of the Building that was filled with bags of dry
floor tiles. Most
of the Floor Tiles in the piles or in the dumpster were broken into pieces of
varying size, indicating that they were not removed intact. The inspector did not observe any
evidence
of the use of emission control measures such as the use of containment devices or
negative air pressure machines.
10.
Upon information and belief, on dates better known to the Respondents but on or
before May 7, 2007, the Respondents removed the Floor Tiles from the floors of the Building
using hand-held scrapers and/or pneumatic jackhammers or drills, and did not wet the Floor Tiles
during or after their removal.
11.
Upon information and belief, the removal
of the Floor Tiles from the floors of the
Building without being wetted and without the use
of emission control measures threatened or
caused the release
of asbestos fibers into the air.
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12.
Upon information and belief, on dates better known to the Respondents but on or
prior to May 7, 2007, the Respondents disposed of the Floor Tiles in the dumpster located at the
rear
of the Building.
13.
Upon information and belief, no foreman or other authorized representative of the
Respondents who was trained in the laws regulating asbestos removal was present during the
removal
of the Floor Tiles from the floors of the Building.
14.
The Respondents did not submit a notice to the Illinois EPA regarding the
Renovation prior to the commencement
of the Renovation.
15.
Section 9(a) ofthe Act, 415 ILCS
5/9(a)
(2006), 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;
16.
Section 201.141 of the Illinois Pollution Control Board ("Board") 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 ....
17.
Section 3.165 of the Act, 415 ILCS
5/3.165
(2006), defines contaminant as:
"Contaminant" is any solid, liquid, or gaseous matter, any odor, or any
form
of energy, from whatever source.
18.
Asbestos is a contaminant as defined by Section 3.165 of the Act.
19.
Section 3.315 of the Act, 415 ILCS
5/3.315
(2006), defines person as:
"Person" is any individual, partnership, co-partnership, firm, company,
limited liability company, corporation, association, joint stock company,
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trust, estate, political subdivision, state agency, or any other legal entity, or
their legal representative, agent or assigns.
20.
Each Respondent is a person as that tenn is defined in Section 3.315
of the Act.
21.
Section 3.115
of the Act, 415 ILCS 5/3.115 (2006), 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
oflife or property.
22.
By disturbing the asbestos-containing Floor Tiles without first wetting the
material, and/or by otherwise mishandling the Floor Tiles, the Respondents caused, threatened,
and/or allowed the release
of asbestos fibers into the environment in sufficient quantities and in
such a manner as to be injurious to human health, and thereby caused air pollution in violation
of
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and Section 201.141 of the Board Air Pollution
Regulations,
35
Ill.
Adm. Code 201.141.
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count
I:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer to the allegations herein;
2.
Finding that the Respondents have violated Section 9(a) of the Act, 415 ILCS
5/9(a) (2006), and Section 201.141
of the Board Air Pollution Regulations, 35
Ill.
Adm. Code
201.141;
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3.
Ordering the Respondents to cease and desist from any further violations of
Section 9(a) of the Act, 415 ILCS 5/9(a) (2006), and Section 201.141 of the Board Air Pollution
Regulations,
35 Ill. Adm. Code 201.141;
4.
Assessing against each of the Respondents a civil penalty of Fifty Thousand
Dollars ($50,000.00) for each violation
of the Act, with an additional penalty ofTen Thousand
Dollars ($10,000.00) against each
of the Respondents for each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
COUNT II
FAILURE TO PROVIDE NOTICE OF A RENOVATION ACTIVITY
1-14. The Complainant realleges and incorporates herein by reference paragraphs 1
through
14 of Count I as paragraphs 1 through 14 of this Count II.
15.
Section 9.1(d)(l) of the Act, 415 ILCS 5/9.1 (d)(l) (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
....
16.
Section 112(b)(l) of the Clean Air Act ("CAA"), 42 U.S.C. § 7412(b)(I) (2007),
provides, in pertinent part, as follows:
The Congress establishes for purposes
of this section a list of hazardous air
pollutants as follows:
Asbestos
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17.
Section 112(h)(1) of the CAA, 42 U.S.C. § 7412(h)(1) (2007), 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 ...
19.
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(h)(1)
of the Clean Air Act, the Administrator of
the United States Environmental Protection Agency adopted National Emissions Standards for
Hazardous Air Pollutants for asbestos ("Asbestos NESHAP"), which are found at 40 C.F.R. Part
61, Subpart
M.
20.
Section 61.141 of the Asbestos NESHAP, 40 C.F.R. § 61.141 (2007), provides
the following definitions:
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.
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.
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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, (c) 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.
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
demolitions.
21.
The Building
is a "facility" as that term is defined in Section 61.141 of the
Asbestos NESHAP.
22.
The Respondents are each an "owner or operator" of the Building as that term is
defined in Section 61.141 of the Asbestos NESHAP.
23.
The Renovation was a "renovation" as that term
is defined in Section 61.141 of
the Asbestos NESHAP.
24.
The Floor Tiles were "category I nonfriable asbestos-containing material" (ACM)
that became "regulated asbestos-containing material" (RACM),
as those terms are defined in
Section 61.141
of the Asbestos NESHAP, after being subjected to cutting and abrading during
the Renovation.
25.
Section 61.145(a) of the Asbestos NESHAP, 40 C.F.R. § 61. 145(a) (2007),
provides, in pertinent part,
as follows:
8
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Applicability.... The requirements of paragraphs (b) and (c) of
this section apply to each owner or operator of a demolition or
renovation activity, including the removal
ofRACM as follows:
**
*
(4)
In a facility being renovated, including any
individual nonscheduled renovation operation, all
the requirements
of paragraphs (b) and (c) of this
section apply
if the combined amount of RACM to
be stripped, removed, dislodged, cut, drilled, or
similarly disturbed 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
*
*
*
26.
The Renovation disturbed more than 160 square feet'ofRACM, and is therefore
subject
to the requirements of paragraphs (b) and (c) of Section 61.145 of the Asbestos
NESHAP, 40 C.F.R.
§ 61.145(b) and (c) (2007).
27.
Section 61. 145(b)
of the Asbesto's NESHAP, 40 C.F.R. § 61.145(b), provides as
follows:
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
....
*
*
*
(3)
Postmark or deliver the notice as follows:
(i) At least
10 working days before asbestos stripping or removal work or
any other activity begins
... if the operation is described in paragraphs
(a)(l) and (4)
... of this section....
28.
By failing to provide notice of the Renovation to the Illinois EPA at least 10 days
before its commencement, the Respondents violated Section 61.145(b)
of the Asbestos
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NESHAP, 40 C.F.R. § 61.145(b), which is a regulation adopted pursuant to Section 112(h) of the
Clean Air Act, 42 U.S.c. § 7412(h)(I); and thereby also violated Section
9.1 (d)(1) of the Act,
415 ILCS 5/9.1 (d)(1) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count
II:
1.
Authorizing a hearing in this. matter at which time the Respondents will be
required to answer to the allegations herein;
2.
Finding that the Respondents have violated Section 61.145(b) of the Asbestos
NESHAP, 40 C.F.R. § 61.145(b), which is a regulation adopted pursuant to Section 112(h)
of the
Clean Air Act, 42 U.S.C. § 7412(h)(1), and thereby also violated Section 9.I(d)(I)
of the Act,
415 ILCS 5/9.1 (d)(I) (2006);
3.
Ordering the Respondents to cease and desist from any further violations of
Section 61. 145(b) of the Asbestos NESHAP, 40 C.F.R. § 61. 145(b), and Section 9.I(d)(I) of the
Act, 415 ILCS 5/9.1 (d)(1) (2006);
4.
Assessing against each of the Respondents a civil penalty of Fifty Thousand
Dollars ($50,000.00) for each violation
of the Act, with an additional penalty of Ten Thousand
Dollars ($10,000.00) against each
of the Respondents for each day of violation;
5.
Ordering the Respondents pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f)
(2006), to pay all costs expended by the State in its pursuit
of this action, including attorney,
expert witness, and consultant fees; and
6.
Granting such other relief as the Board deems appropriate and just.
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COUNT III
FAILURE TO WET AND TO PROPERLY HANDLE
REGULATED ASBESTOS-CONTAINING MATERIALS DURING REMOVAL
1-26. The Complainant realleges and incorporates herein by reference paragraphs 1
through 26
of Count II as paragraphs 1 through 26 of this Count
III.
27.
Section 61.145(c)(3) of the Asbestos NESHAP, 40 C.F.R. § 61.145(c)(3),
provides, in pertinent part, as follows:
(c)
Procedures for asbestos emission control. 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:
*
*
*
(3)
When RACM is stripped from a facility component while it
remains in place in the facility, adequately wet the RACM
during the stripping operation.
28.
By failing to wet the Floor Tiles during their removal from the floors
of the
Building, the Respondents stripped RACM from a facility component without adequately
wetting it, and thereby violated Section 61.145(c)(3)
of the Asbestos NESHAP, 40 C.F.R. §
61.145(c)(3), which is a regulation adopted pursuant to Section 112(h)
of the Clean Air Act, 42
U.S.C. § 7412(h)(1), and thereby also violated Section 9.1 (d)(1) of the Act, 415 ILCS 5/9.1(d)(1)
(2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count III:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer to the allegations herein;
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2.
Finding that the Respondents violated Section 61.145(c)(3) of the Asbestos
NESHAP, 40 C.F.R. § 61.145(c)(3), which is a regulation adopted pursuant to Section 112(h)
of
the Clean Air Act, 42 U.S.C. § 7412(h)(I), and thereby also violated Section 9.1(d)(I) of the Act,
415 ILCS 5/9.1(d)(I) (2006);
3.
Enjoining the Respondents from committing any further violations
of Section
61. 145(c)(3)
of the Asbestos NESHAP, 40 C.F.R. § 61. 145(c)(3), and Section 9.1 (d)(l) of the
Act, 415 ILCS 5/9.1
(d)(l) (2006);
4.
Assessing a civil penalty
of Fifty Thousand Dollars ($50,000.00) against the
Respondents for each violation
of the Act, with an additional penalty ofTen Thousand Dollars
($10,000.00) per day for each day
of violation;
5.
Taxing all costs in this action pursuant to Section 42(f) of the Act, 415 ILCS
5/42(f) (2006), including expert witness, consultant and attorney fees, against the Respondents;
and
6.
Granting such other relief as this Court deems appropriate and just.
COUNT IV
FAILURE TO WET AND TO PROPERLY HANDLE
REGULATED ASBESTOS-CONTAINING MATERIALS AFTER REMOVAL
1-26. The Complainant realleges and incorporates herein by reference paragraphs 1
through 26
of Count III as paragraphs 1 through 26 of this Count IV.
27.
Section 61. I45(c)(6)(i)
of the Asbestos NESHAP, 40 C.F.R. § 61. 145(c)(6)(i),
provides as follows:
(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
....
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*
*
*
28.
By failing to wet the Floor Tiles after their removal from the floors of the
Building, and by failing to ensure that the Floor Tiles remained wet until they were colleted and
disposed of, the Respondents violated Section 61. 145(c)(6)(i)
of the Asbestos NESHAP, 40
C.F.R. § 61. 145(c)(6)(i), which is a regulation adopted pursuant to Section 112(h)
of the Clean
Air Act, 42 U.S.c. § 7412(h)(l), and thereby also violated Section 9.l(d)(1)
of the Act, 415
ILCS 5/9.1(d)(l) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count IV:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer to the allegations herein;
2.
Finding that the Respondents have violated Section 61. 145(c)(6)(i) of the
Asbestos NESHAP, 40 C.F.R.
§ 61.145(c)(6)(i), which is a regulation adopted pursuant to
Section 112(h)
of the Clean Air Act, 42 U.S.C. § 7412(h)(l), and thereby also violated Section
9.1 (d)(l) of the Act, 415 ILCS 5/9.1 (d)(l) (2006);
3.
Enjoining the Respondents from committing any further violations of Section
61. 145(c)(6)(i)
of the Asbestos NESHAP, 40 C.F.R. § 61. 145(c)(6)(i), and Section 9.l(d)(1) of
the Act, 415 ILCS 5/9.1 (d)(1) (2006);
4.
Assessing against the Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each violation
of the Act, and an additional civil penalty ofTen Thousand
Dollars ($10,000.00) for each day
of continued violation;
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5.
Taxing all costs in this action, pursuant to Section 42(t) of the Act, 415 ILCS
5/42(t) (2006), including expert witness, consultant, and attorney fees, against the Respondents;
and
6.
Granting such other relief as this Court deems appropriate and just.
COUNT V
FAILURE TO HAVE A TRAINED FOREMAN
OR REPRESENTATIVE PRESENT DURING
THE DISTURBANCE OF REGULATED ASBESTOS CONTAINING MATERIALS
1-26. The Complainant realleges and incorporates herein by reference paragraphs 1
through 26
of Count IV as paragraphs 1 through 26 of this Count V.
27.
Section 61.145(c)(8) of the Asbestos NESHAP, 40 C.F.R. § 61. 145(c)(8),
provides as follows:
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 onsite 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.
28.
By failing to ensure that a foreman or other authorized representative
of the
Respondents who was trained in the laws regulating asbestos removal was present during the
removal
of the Floor Tiles from the floors of the Building, the Respondents violated Section
61.145(c)(8)
of the Asbestos NESHAP, 40 C.F.R. § 61. 145(c)(8), which is a regulation adopted
pursuant to Section 112(h)
of the Clean Air Act, 42 U.S.C. § 7412(h)(1), and thereby also
violated Section
9.1 (d)(1) of the Act, 415 ILCS 5/9.1 (d)(1) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count
V:
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* * * * * PCB 2009-039 * * * * *
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer to the allegations herein;
2.
Finding that the Respondents have violated Section 61.145(c)(8) of the Asbestos
NESHAP, 40 C.F.R. § 61. 145(c)(8), which is a regulation adopted pursuant to Section 112(h)
of
the Clean Air Act, 42 U.S.C. § 7412(h)(l), and thereby also violated Section 9.l(d)(I) of the Act,
415 ILCS 5/9.1 (d)(I) (2006);
3.
Enjoining the Respondents from committing any further violations
of Section
61. 145(c)(8)
of the Asbestos NESHAP, 40 C.F.R. § 61.145(c)(8), and Section 9.1(d)(I) of the
Act, 415 ILCS 5/9.1
(d)(l) (2006);
4.
Assessing against the Respondents a civil penalty
of Fifty Thousand Dollars
($50,000.00) for each violation
of the Act, and an additional civil penalty ofTen Thousand
Dollars ($10,000.00) for each day
of continued violation;
5.
Taxing all costs in this action, pursuant to Section 42(f) of the Act, 415 ILCS
5/42(f) (2006), including expert witness, consultant, and attorney fees, against the Respondents;
and
6.
Granting such other relief as this Court deems appropriate and just.
COUNT VI
FAILURE TO DEPOSIT ALL ASBESTOS-CONTAINING
WASTE MATERIAL WITHIN A SITE PERMITTED
TO ACCEPT SUCH WASTE AS SOON AS PRACTICABLE
1-26. The Complainant realleges and incorporates herein by reference paragraphs 1
through 26
of Count V as paragraphs 1 through 26 of this Count VI.
27.
40 CFR
§ 61.150(b) provides, in part:
Each owner or operator
of any source covered under the provisions of §§ 61.144,
61.145,61.146, and 61.147 shall comply with the following provisions:
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Electronic Filing - Received, Clerk's Office, December 15, 2008
* * * * * PCB 2009-039 * * * * *
*
*
*
(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.
*
*
*
28.
By failing to deposit the Floor Tiles in an approved asbestos disposal site, the
Respondents violated Section 61.150(b)
of the Asbestos NESHAP, 40 C.F.R. § 61. 150(b), which
is a regulation adopted pursuant to Section 112(h)
of the Clean Air Act, 42 U.S.C. § 7412(h)(l),
and thereby also violated Section 9.1(d)(I)
of the Act, 415 ILCS 5/9.1(d)(I) (2006).
WHEREFORE,
the Complainant, the PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order against the Respondents, AL-ALGONGUIN
APARTMENTS, LLC, ALGONQUIN APARTMENTS, LLC, and ALGONQUIN
MANAGEMENT, LLC, on this Count VI:
1.
Authorizing a hearing in this matter at which time the Respondents will be
required to answer to the allegations herein;
2.
Finding that Respondents have violated Section 61.150(b)
of the Asbestos
NESHAP, 40 C.F.R. § 61.150(b), which is a regulation adopted pursuant to Section 112(h)
of the
Clean Air Act, 42 U.S.C. § 7412(h)(l), and thereby also violated Section
9.1 (d)(l) of the Act,
415 ILCS 5/9.1(d)(I) (2006);
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Electronic Filing - Received, Clerk's Office, December 15, 2008
* * * * * PCB 2009-039 * * * * *
3.
Enjoining the Respondents from committing any further violations of Section
61.150(b)
of the Asbestos NESHAP, 40 C.F.R. § 61.l50(b), and Section 9. 1(d)(1) of the Act,
415 ILCS 5/9.1 (d)(I) (2006);
4.
Assessing against Respondents a civil penalty of Fifty Thousand Dollars
($50,000.00) for each violation
of the Act, and an additional civil penalty ofTen Thousand
Dollars ($10,000.00) for each day
of continued violation;
5.
Taxing all costs in this action, pursuant to Section 42(f) of the Act, 415 ILCS
5/42(f) (2006), including expert witness, consultant, and attorney fees, against Respondents; and
6.
Granting such other relief as this Court deems appropriate and just.
PEOPLE OF THE STATE OF ILLINOIS
ex rei.
LISA MADIGAN,
Attorney General
of the
State of Illinois
MATTHEW
J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
/,..-'-
By:
OfCounsel:
ANDREW ARMSTRONG
Assistant Attorney General
Environmental Bureau
69 West Washington Street, 18th Floor
Chicago, Illinois 60602
(312) 814-0660
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CERTIFICATE OF SERVICE
I, ANDREW ARMSTRONG, an Assistant Attorney General, do certify that I caused to
be served this 15th day
of December, 2008, the foregoing Notice of Filing and Complaint upon
the person listed on said Notice
of Filing by placing true and correct copies of each in an
envelope, certified mail postage prepaid, and depositing same with the United States Postal
Service at 69 West Washington Street, Chicago, Illinois, at or before the hour
of 5:00 p.m.
~~~
ANDREW ARMSTRONG
Electronic Filing - Received, Clerk's Office, December 15, 2008
* * * * * PCB 2009-039 * * * * *
