BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-51
(Enforcement - Air)
NOTICE OF FILING
TO:
Schlueter Ecklund
(VIA ELECTRONIC FILING)
4023 Charles Street
Rockford, IL 61108-6135
PLEASE TAKE NOTICE that today I have electronically filed with the Office of
the Clerk of the Pollution Control Board the following Motion for Summary Judgment on
All Counts
of the First Amended Complaint, a copy of which is attached and hereby
served on you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General
of the State of Illinois
By:----IV~~~~.
~~~rL~.(-
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69 W. Washington St., 18th Floor
Chicago, Illinois
60602
(312) 814-0660
Electronic Filing - Received, Clerk's Office, March 31, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH &
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-51
(Enforcement - Air)
COMPLAINANT'S MOTION FOR
SUMMARY JUDGMENT ON ALL COUNTS OF
THE FIRST AMENDED COMPLAINT
Now comes the Complainant,
PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General
of the State of Illinois, and pursuant to Section 101.516 of the
Illinois Pollution Control Board
("Board") Procedural Rules, 35 Ill. Adm. Code 101.516, the
September 16,
2004 and January 6, 2005 Board Orders in this cause, hereby moves this Board
for Summary Judgment as to Counts I through VII
of the First Amended COlpplaint against
Respondent, ENVIRONMENTAL HEALTH & SAFETY SERVICES, INC. In support thereof,
Complainant states as follows:
I.
INTRODUCTION
On December 6, 2004, the Complainant, PEOPLE OF THE STATE OF ILLINOIS, by
LISA MADI GAN, Attorney General
of the State of Illinois, filed its First Amended Complaint
against Respondent,
ENVIRONMENTAL HEALTH & SAFETY SERVICES, INC. ("EH&S").
Complainant alleged violations of Sections 9(a) and 9.1 (d) of the Illinois Environmental
Protection Act
("Act"), 415 ILCS 5/9(a) and 9.1(d) (2004), Section 201.141 of the Board Air
Electronic Filing - Received, Clerk's Office, March 31, 2009
Pollution Regulations, 3S
Ill.
Adm. Code 201.141, and Sections 61. 14S(b)(1), (b)(3)(iv),
(b)(4)(vi), (c)(3), and
(c)(6)(i), and 61.1S0(a)(1) and (b)(1) of the United States Environmental
Protection Agency's
("u.
S. EPA") National Emissions Standards for Hazardous Air Pollutants,
("NESHAP"), 40 C.F.R. 61. 14S(b) (1), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and 61. 1 SO(a)(1)
and (b)(1).
On May 23, 200S, Respondent filed its Answer to the Complaint which is attached to and
incorporated
by reference into this motion as Exhibit A. On December 19, 200S, Complainant
served its First Request for Admission
of Facts on Respondent which are attached to and
incorporated
by reference into this motion as Exhibit B. On March 3, 2006, Respondent filed its
Amended Response to Complainant's First Request for Admission
of Facts, which is attached to
and incorporated
by reference into this motion as Exhibit C. On April 7, 2006, Complainant
served on Respondent Complainant's First
Set ofInterrogatories and Complainant's First
Request for
Production of Documents. On May 26, 2006, Respondent faxed partial Answers to
Complainant's First
Set ofInterrogatories. Respondent served a signed copy upon Complainant
on July 28,
2006.
The complaint and answer filed in this cause, and the Respondent's admissions on file,
together with the affidavits supporting this motion, establish all material facts necessary to prove
liability on Counts I through VII
of the First Amended Complaint and Plaintiff s entitlement to
penalties. Accordingly, because there is no genuine issue
of material fact, Complainant is
entitled to judgment as a matter
of law.
2
II.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Section 101.516(b) of the Board's Procedural Regulations, 35
Ill.
Adm. Code 101.516(b),
provides as follows:
b)
If the record, including pleadings, depositions and
admissions on file, together with any affidavits,
shows that there
is no genuine issue of material fact,
and that the moving party is entitled to judgment as
a matter
of law, the Board will enter summary
judgment.
The purpose
of the summary judgment procedure is to aid in the expeditious resolution of
a lawsuit.
Atwoodv. St. Paul Fire
&
Marine Ins. Co.,
363 Ill.App.3d 861, 863, 845 N.E.2d 68,
70 (2d Dist. 2006). "The purpose of a summary judgment proceeding is not to try an issue of
fact, but to determine whether any genuine issue of material fact exists."
Happel
v.
Wal-Mart
Stores, Inc.,
199
Il1.2d 179, 186, 766 N.E.2d 1118, 1123 (2002).
III.
ARGUMENT
The complaint and answer filed in this cause, and the Respondents' admissions on file,
together with the affidavits supporting this motion, establish all material facts necessary to prove
Respondent violated Sections 9(a) and
9.1 (d) of the Act, 415 ILCS 5/9(a) and 9.1(d) (2004),
Section 201.141 of the Board Air Pollution Regulations, 35
Ill.
Adm. Code 201.141, and
Sections 61. 145(b)(l), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i), and
61.150(a)(1) and (b)(l) of
the NESHAP for asbestos, 40 C.F.R. 61.145(b)(l), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and
61.
150(a)(1 ) and (b )(1). Accordingly, because there is no genuine issue of material fact,
Complainant is entitled to judgment as a matter
of law on Counts I through VII.
3
A.
Count I:
Respondent Caused, Threatened or Allowed Air Pollution
1.
The First Amended Complaint in this action was brought 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") against ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., pursuant to the terms and provisions of Section 31 ofthe Act, 415
ILCS 5/31 (2004).
2.
The Illinois EPA is an administrative agency established in the executive. branch
of the State government by Section 4 of the Act, 415 ILCS 5/4 (2004), and charged, inter alia,
with the duty
of enforcing the Act.
3.
Environmental Health
&
Safety Services, Inc., is an Illinois corporation in good
standing. [Respondent's Answer to
Count I,
~3
of Complainant's First Amended Complaint]
4.
Respondent
condu~ts
asbestos consulting services, including building inspections,
asbestos abatement project management, and asbestos removal and disposal activities.
[Answer,
Count I,
~4]
5.
At all times relevant to the First Amended Complaint in this action, Respondent's
business was located at
1304 Derby Lane, Rockford, Winnebago County, Illinois 61107.
[Answer,
Count I,
~5]
6.
Respondent contracted with the owner of the former Lincoln Park School located
at
4103 West State Street, Rockford, Winnebago County, Illinois ("Facility" or "Site") to remove
and dispose
of regulated asbestos-containing material ("RACM") from the boiler room located
within the Facility. [Answer,
Count I,
~6]
4
7.
At all times relevant to the First Amended Complaint in this action, EH&S was
the asbestos removal contractor at the Facility. [Respondent's Response to Complainant's First
Request for Admission
of Facts,
~8]
8.
On January 7, 2003, Respondent's employees removed dry friable! RACM from
the boiler and dropped it onto the floor. When the asbestos fell onto the floor, it broke, causing
the visible emission
of particulate asbestos-containing material. [Dennis Hancock ("Hancock")
Affidavit, attached to and incorporated by reference into this motion as Exhibit D,
~4]
9.
On January 7, 2003, Respondent did not use any technology to prevent the
emission
of asbestos particles into the outside air. There was no containment in the work area,
no negative air machine running or even in the area, no bag out area, no decontamination unit, no
water being used, and no Hudson sprayers in the area. Additionally, EH&S' employees were not
removing outer suits before
exiting the work area. [Hancock Affidavit,
~5]
10.
On January 7, 2003, the Illinois EPA inspected one of several bags located within
the boiler room area and utilized by Respondent's employee to contain asbestos-containing
material. This bag contained dry regulated asbestos-containing material that could easily be
crushed and crumbled by hand pressure. No water or condensation was visible within the bag
inspected by the Illinois
EPA. [Hancock Affidavit,
~
11]
11.
On January 7, 2003, the Illinois EPA collected two samples of dry friable RACM
from inside the boiler room work area, and one sample was collected from the area
adjacent to the entry door to the work area. [Hancock Affidavit,
~7]
12.
On January 24,2003, the Illinois EPA received from EnviroHealth Technologies,
I
Friable asbestos material
is "any material containing more than 1 percent asbestos ... that, when dry, can be
crumbled, pulverized, or reduced to powder by hand pressure." 40 CFR 61.141.
5
Electronic Filing - Received, Clerk's Office, March 31, 2009
Inc., test data documenting that one of the samples. contained concentrations of chrysotile
asbestos from
10% to 20% and all three samples contained concentrations of amosite asbestos
from
10% to 30%. [William Lowry ("Lowry") Affidavit, attached to and incorporated by
reference into this motion as Exhibit
E,
~
21] [Hancock Affidavit,
~
9]
13.
Section 9(a) of the Act, 415 ILCS 5/9(a) (2004), 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; .
14.
Section 201.141 of the Board's Air Pollution Regulations, 35 Ill. Adm. Code
201.141, titled, Prohibition
of Air Pollution, 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 ...
15.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2004), contains the following
definition:
"Person" is any individual, partnership, co-partnership, firm, company, limited
liability company, corporation, association, joint stock company, trust, estate,
political subdivision, state agency, or any other legal entity, or their legal
representative, agent or assigns.
16.
Respondent is a corporation and therefore, a "person" as that term is defined by
Section 3.315
of the Act, 415 ILCS 5/3.315 (2004).
17.
Section 3.115 ofthe Act, 415 ILCS 5/3.115 (2004), 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
6
human, plant, or animal life, to health, or to property, or to unreasonably interfere
with the enjoyment
of life or property.
18.
Section 3.165
of the Act, 415 ILCS 5/3.165 (2004), defines contaminant as
follows:
"Contaminant" is any solid, liquid, or gaseous matter, any odor, or any form of
energy, from whatever source.
19.
Asbestos is contaminant as that term is defined by Section 3.165
of the Act, 415
ILCS 5/3.165 (2004).
20.
No safe concentration of airborne asbestos has been determined. U.S. EPA,
Asbestos NESHAP Adequately Wet Guidance,
EPA340/1-90~019
(Dec. 1990). Studies have
shown a definite association between exposure to asbestos and an increased incidence
of lung
cancer, pleural and peritoneal mesothelioma, gastrointestinal cancer, and asbestosis. 29 C.F.R. §
1926.1101, App.
I.
Accordingly, any asbestos that is released to the air causes or threatens
injury to human life or health, and thus is air pollution as defined by Section 3.115
of the Act,
415
ILCS 5/3.115 (2004).
21.
Respondent, the asbestos removal contractor that removed RACM from within
the Facility, removed dry friable RACM from a boiler and the boiler pipes within the Facility
without utilizing wet methods or any other measures to control asbestos emissions. Through
these asbestos removal actions, Respondent caused, threatened or allowed the presence
of
asbestos, a
~ontaminant,
in the atmosphere so as to cause or tend to cause air pollution, in
violation
of Section 9(a) of the Act, 415 ILCS 5/9(a) (2004), and 35 Ill. Adm. Code 201.141.
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays for the
entry
of summary judgment in its favor and against Respondent, ENVIRONMENTAL HEALTH
7
&
SAFETY SERVICES, INC., on Count I of the First Amended Complaint for the reason that
the pleadings, admissions on file, and affidavits show that there is no genuine issue as to any
material fact and that Complainant is entitled
to judgment as a matter of law. Specifically,
Complainant seeks an order:
1.
Finding that Respondent has violated Section 9(a) of the Act and 35 Ill. Adm.
Code Section
201.141 ;
2.
Ordering Respondent to cease and desist from any further violations of Sections
9(a)
of the Act, and 35 Ill. Adm. Code Section 201.141;
3.
Assessing a civil penalty against Respondent of Five Thousand Dollars
($5,000.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the State in pursuit of this
action, including expert witnesses, consultant, and attorney fees; and
5.
Granting such other relief as this Board deems appropriate and just.
B.
Count II:
Respondent Failed To Provide a Complete Notification
of
Demolition and Renovation to the Illinois EPA, as Required by
Asbestos NESHAP
1.
Complainant realleges and incorporates by reference into its motion for summary
judgment on Count
II all factual statements and statements of law contained in its motion for
summary judgment on Count
I.
2.
Section 9.1(d)(l) of the Act, 415 ILCS 5/9. 1 (d)(l) (2004) states as follows:
(d)
No person shall:
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.
8
3.
Asbestos is classified as a "hazardous air pollutant" under section 112 of the
Clean Air Act. 42
U.S.C. § 7412(b)(1) (2004); 40 C.F.R. § 61.01(a).
4.
Pursuant to Section 112 of the CAA, the U.S. EPA adopted the NESHAP for
asbestos to protect the public health from asbestos. The
USEP A determined that work practice
standards rather than emission standards were appropriate for the regulation
of asbestos.
See 42
U.S.C. § 7412(h) (2004).
5.
The federal regulations set forth within the NESHAP for asbestos are enforceable
through Section 9.1(d)(I) of the Act, 415 ILCS 5/9.1 (d)(1) (2004).
6.
Section 61. 145(a) of the NESHAP for asbestos, 40 CFR 61. 145(a) (January 17,
2003), titled,
Standard/or Demolition and Renovation,
provides in pertinent part as follows:
(a)
Applicability. To determine which requirements
of paragraphs (a), (b), and (c) 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 (c) of
this section apply to each owner or operator of a demolition or renovation activity,
including the removal of RACM as follows:
(1)
In a facility being demolished, all the requirements
of
paragraphs (b) and (c) of this section apply, except as provided in
paragraph (a)(3)
of this section, if the combined amount ofRACM
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.
9
Electronic Filing - Received, Clerk's Office, March 31, 2009
7.
Regulated asbestos-containing material is defined in Section 61.141, 40 CFR
61.141, as follows:
(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.
8.
EH&S was the owner or operator of a demolition activity at the Site, as defined
by the
NESHAP for asbestos. "Demolition" is defined as the wrecking or taking out of any load-
supporting structural member
of a facility "together: with any related handling operations ... " [40
C.F.R. § 61.141] By "contracting with the owner of the former Lincoln Park School to remove
and dispose
of regulated asbestos-containing material," in conjunction with the demolition of the
facility [Answer, Count
I,
~6],
Respondent engaged in the asbestos removal portion of a
"demolition" as defined in 40 CFR 61.141.
9.
The definition of "owner or operator of a demolition or renovation activity"
includes "any person who owns, leases, operates, controls, or supervises the demolition or
renovation
operation." [40 CFR 61.141] Respondent, the asbestos removal contractor, owned,
operated, controlled, or supervised the asbestos removal activities that were required prior to
demolition, and thus was the
"operator of a demolition or renovation activity" as that term is
defined in
40 CFR 61.141.
10.
The definition of a "facility" includes "any institutional, commercial, public,
industrial, or residential structure, installation, or building ....
" [40 CFR 61.141] Therefore, the
former school constitutes a
"facility."
11.
On December 9, 2002, the Illinois EPA received a Notification of Demolition and
10
Electronic Filing - Received, Clerk's Office, March 31, 2009
Renovation ("Notification") from Respondent, informing the Illinois EPA of scheduled asbestos
removal activities to be conducted within the Facility. [Jan McDow
("McDow") Affidavit
attached to and incorporated by reference into this motion
as Exhibit F,
~8,
10, 11; Shannon Coe
("Coe") Affidavit attached to and incorporated by reference into this motion as Exhibit G,
~8,
9]
The asbestos removal was scheduled to begin on January 2,2003, and be completed by January
24,2003. [McDow Affidavit, Attachment 1]
12.
The Notification listed EH&S as the "Asbestos Removal Contractor," and stated
that the facility was to be demolished after the asbestos removal activities were completed.
[McDow Affidavit, Attachment
1]
13.
The Notification stated that 1000 linear feet of RACM on pipes were to be
removed,
630 square feet ofRACM were to be removed from the boilers, and 12,500 square feet
of Category
I
nonfriable asbestos-containing floor tile were to be removed. [McDow Affidavit,
Attachment
1]
14.
The Notification did not state an estimate of the approximate amount of asbestos-
containing material that would not be removed during demolition
of the facility. [McDow
Affidavit, Attachment
1]
15.
Respondent's asbestos removal activities within the Facility, as the owner or
operator
of the demolition activity, were subject to the requirements of 40 CFR 61.145(b) and
(c), because more than
"80 linear meters (260 linear feet) on pipes or at least 15 square meters
(160 square feet) on other facility components" ofRACMwere to be removed from the facility.
11
Electronic Filing - Received, Clerk's Office, March 31, 2009
16.
Section 61. 145(b)(4)(vi), set forth within the NESHAP for asbestos, 40 CFR
61.145(b)(4)(vi) (January
17,2003), titled
Standardfor Demolition and Renovation: Notification
Requirements,
provides in pertinent part:
(b)
Each owner or operator
of a demolition or renovation activity. to which
this section applies shall:
(4)
Include the following in the notice:
(vi)
[E]stimate the approximate amount
of Category I and
Category
II nonfriable ACM in the affected part of the
facility that
will not be removed before demolition.
17.
In the Notification received by the Illinois EPA from Respondent on December 6,
2002, Respondent did not state the approximate amount of Category I and Category II nonfriable
ACM in the affected area
of the Facility that would not be removed before demolition of the
Facility. [McDow Affidavit, Attachment
1]
18.
By not listing on the Notification the amount of Category I and Category II
nonfriable ACM that would not be removed before demolition, as required by 40 C.F.R.
61. 145(b)(4)(vi), Respondent violated Section 9.1(d)(1) of the Act, 415 ILCS 5/9.1 (d)(1) (2004),
and 40 CFR 61. 145(b)(4)(vi).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays for the
entry
of summary judgment in its favor and against Respondent, ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., on Count II of the First Amended Complaint for the reason that
the pleadings, admissions on file, and affidavits show that there is no genuine issue as to any
material fact and that Complainant is entitled to judgment as a matter
of law. Specifically,
Complainant seeks an order:
12
1.
Finding that Respondent has violated Section 9.1 (d)(1) of the Act and 40 CFR
61.14S(b)( 4)(vi);
2.
Ordering Respondent to cease and desist from any future violations of Section
9.1 (d)(1) of the Act and 40 CFR 61. 14S(b) (4)(vi);
3.
Assessing a civil penalty against Respondent of Two Thousand Five Hundred
Dollars
($2,SOO.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the State in pursuit of this
action, including expert witness, consultant, and attorney fees; and
S.
Granting such other relief as this Board deems appropriate and just.
c.
Count III:
Respondent Failed to Timely Notify the Illinois EPA of the
New
Start Date of the Demolition and Renovation Operation,
as Required by Asbestos NESHAP
1.
Complainant realleges and incorporates by reference into its motion for summary
judgment on Count III all factual statements and statements
of law contained in its motions for
summary judgment on Counts I and
II.
2.
Section 61.14S(b)(I) and (3)(iv) set forth within the NESHAP for asbestos, 40
CFR 61. 14S(b)(1) and (3)(iv) (January 17,2003), titled,
Standardfor Demolition and
Renovation: NotificatiolJ Requirements,
provide in pertinent part as follows:
(b)
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.
*
*
*
13
(3)
Postmark or deliver the notice as follows:
(iv)
For asbestos stripping or removal work in a demolition or
renovation operation, described in paragraphs
(a)(l) and (4)
(except (a)(4)(iii) and(a)(4)(iv))
ofthis section, and for a
demolition described in paragraph (a)(2)
of this section,
that will begin on a date other than the one contained in the
original notice, notice
of the new start date
must be provided to the Administrator as follows:
(A)
When the asbestos stripping or removal operation or
demolition operation covered by this paragraph will
begin after the date contained in the notice,
(1)
Notify the Administrator
of the new start
date by telephone as soon as possible before
the original start date, and
(2)
Provide the Administrator with a written
notice
of the new start date as soon as
possible before, and
no later than, the
original start date.
Delivery of the updated
notice by the
u.s. Postal Service,
commercial delivery service, or hand
delivery is acceptable.
3.
At all times relevant to the First Amended Complaint in this action, Randall
Oldenburger was the
President ofEH&S. [Respondent's Response to Complainant's First
Request for Admission
of Facts,
~17]
4.
On January 7, 2003, Mr. Oldenburger informed the Illinois EPA that asbestos
removal activities in the Facility commen ced on January
6, 2003, which was two working days
after the scheduled starting date of January 2, 2003 listed in the Notification. [Hancock
Affidavit,
~6]
14
Electronic Filing - Received, Clerk's Office, March 31, 2009
5.
Respondent did not provide written notice of the new start date to the Illinois EPA
prior to the original start date
of January 2,2003, as required by 40 CFR 61.145(b)(3)(iv).
[McDow Affidavit,
~12]
6.
Respondent completed asbestos remediation activities in the boiler room on
August
14,2003. [Hancock Affidavit,
~14
, Attachment 1]
7.
Respondent, by failing to notify the Illinois EPA of the new start date prior to
commencing asbestos removal activity, violated Section 9.1 (d)( I) of the Act, 415 ILCS
5/9.1
(d)(I) (2004), and 40 CFR 61.145(b)(I) and (3)(iv) (January 17,2003).
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays for the
entry
of summary judgment in its favor and against Respondent, ENVIRONMENTAL HEALTH
AND SAFETY
SERVICES, INC., on Count III of the First Amended Complaint for the reason
that the pleadings, admissions on file, and affidavits show that there is no genuine issue
as to any
material fact and that Complainant is entitled to judgment
as a matter of law. Specifically,
Complainant seeks an order:
1.
Finding that Respondent has violated Section 9.1 (d)( I) of the Act and 40 CFR
61.145(b)(I) and (3)(iv);
2.
Ordering Respondent to cease and desist from any future violations of Section
9.I(d)(1)
of the Act and 40 CFR 61.145(b)(1) and (3)(iv);
3.
Assessing against Respondent a civil penalty of Five Thousand Dollars
($5,000.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the State in pursuit of this
action, including expert witness, consultant, and attorney fees; and
15
Electronic Filing - Received, Clerk's Office, March 31, 2009
5.
Granting such other relief as this Board deems appropriate and just.
D.
Count IV:
Respondent Failed to Adequately Wet All RACM Prior
to Stripping From Structures
1.
Complainant realleges and incorporates by reference into its motion for summary
judgment on Count.
IV all factual statements and statements of law contained in its motion for
summary judgment on Counts I through III.
2.
Section 61. 145(c)(3) set forth within the NESHAP for asbestos, 40 CFR
61. 145(c)(3) (January
17,2003), titled,
Standardfor Demolition and Renovation: Procedures for
Asbestos Emission Control,
provides in pertinent part as follows:
(c)
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.
3.
Section 61.141 of the NESHAP for asbestos, 40 CFR 61.141, defines "adequately
wet"
as follows:
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.
4.
On January 7, 2003, during the Illinois EPA inspection, EH&S and its employees
were not using any water at all. No water at all was visible on the ACM, the boiler, or the boiler
pipes, nor was any water on the floor. Dry RACM material was visible on the floor. [Hancock
Affidavit,
~5,
10, 11]
16
Electronic Filing - Received, Clerk's Office, March 31, 2009
5.
By not wetting the RACM at all prior to removing the RACM at the Facility,
EH&S did not "adequately wet" all RACM prior to removal, as required by 40 CFR 61.145
(c)(3).
6.
By failing to adequately wet the RACM during asbestos removal activities,
Respondent violated
Section 9.I(d)(I) of the Act, 415 ILCS 5/9.1 (d)(1) (2004), and 40 CFR
61. 145(c)(3).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays for the
entry
of summary judgment in its favor and against Respondent, ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., on Count IV of the First Amended Complaint for the reason that
the pleadings, admissions on file, and affidavits show that there is no genuine issue as to any
material fact and that Complainant is entitled to judgment as a matter
of law. Specifically,
Complainant seeks an order:
I.
Finding that Respondent has violated
Section 9.1 (d)( 1) of the Act and 40 CFR
61.145(c)(3);
2.
Ordering Respondent to cease and desist from any further violations of Section
9.I(d)(1) of the Act and 40 CFR 61.145(c)(3);
3.
Assessing against Respondent a civil penalty of Eleven Thousand Dollars
($11,000.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the
State in pursuit of this
action, including expert witness, consultant, and attorney fees; and
5.
Granting such other.relief as this Board deems appropriate and just.
17
Electronic Filing - Received, Clerk's Office, March 31, 2009
E.
Count V:
Respondent Failed to Adequately Wet all Regulated Asbestos-
Containing Material Until Collection
1.
Complainant realleges and incorporates by reference into its motion for summary
judgment on Count
V all factual statements and statements of law contained in its motion for
summary judgment on Counts I through IV.
2.
Section 61. 145(c)(6)(i) set forth within the NESHAP for asbestos, 40 CFR 61.145
(c )(6)(i) (January 17, 2003), titled,
Standard for Demolition and Renovation: Procedures for
Asbestos Emission Control,
provides in pertinent part 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; ...
3.
Respondent did not use water at the facility at all during the January 2003
asbestos removal activities. [Hancock Affidavit,
~
5, 10, 11] Accordingly, Respondent failed to
adequately wet and maintain wet all RACM and regulated asbestos-containing waste material
until collected and contained in preparation for disposal.
4.
By failing to ensure that the RACM and regulated asbestos-containing waste
material remained wet until collected and contained, Respondent violated Section
9.1 (d)( 1) of
the Act, 415 ILCS 5/9. 1 (d)(1) (2004), and 40 CFR 61. 145(c)(6)(i).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays for the
entry
of summary judgment in its favor and against Respondent, ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., on Count V of the First Amended Complaint for the reason that
the pleadings, admissions on file, and affidavits show that there is no genuine issue as to any
18
Electronic Filing - Received, Clerk's Office, March 31, 2009
material fact and that Complainant is entitled to judgment as a matter of law. Specifically,
Complainant seeks an order:
1.
Finding that Respondent has violated Section 9.1 (d)( 1) of the Act and 40 CFR
61.145( c )(6)(i);
2.
Ordering Respondent to cease and desist from any further violations of Section
9.1 (d)(1) of the Act and 40 CFR 61. 145(c)(6)(i);
3.
Assessing against Respondent a civil penalty of Eleven Thousand Dollars
($11,000.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the State in pursuit of this
action, including expert witness, consultant, and attorney fees; and
5.
Granting such other relief as this Board deems appropriate and just.
F.
Count VI:
Respondent Failed to Adequately Wet, Store in a Leak-tight
Container and Label the Regulated Asbestos-Containing
Material Waste
1.
Complainant realleges and incorporates by reference into its motion for summary
judgment on Count
VI all factual statements and statements of law contained in its motion for
summary judgment on Counts I through V.
2.
Section 61. 150(a)(1 ) set forth within the NESHAP for asbestos, 40 CFR
61.150(a)(1)
(October 10,2003), titled,
Standard/or Waste Disposal/or Manufacturing,
Fabricating, Demolition, Renovation, and Spraying Operations,
provides in pertinent part as
follows:
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:
19
Electronic Filing - Received, Clerk's Office, March 31, 2009
follows:
(a)
Discharge no visible emissions to the outside air during the
collection, processing (including incineration), packaging, or
transporting
of any asbestos-containing waste material generated
by the source, or use one
of the emission control and waste
treatment methods specified in paragraphs (a)(I) through (4)
of
this section.
(1)
Adequately wet asbestos-containing waste materials as
(i)
Mix control device asbestos waste to form a slurry;
adequately wet other asbestos-containing waste
material; and
(ii)
Discharge no visible emissions to the outside air
from collection, mixing, wetting, and handling
operations, or use the methods specified by
§
61.152 to clean emissions containing particulate
asbestos material before they escape to,
or
are .
vented to, the outside air; and
(iii)
After wetting, seal all asbestos-containing waste
material in leak-tight containers while wet. .. ; and
(iv)
Label the containers or wrapped materials specified
in paragraph (a)( 1 )(iii)
of this section using warning
labels specified by Occupational
Safety and Health
Standards
of the
Departmen~
of Labor,
Occupational
Safety and Health Administration
(OSHA) under 29 CFR 1910.10010)(2) or
1926.58(k)(2)(iii). The labels shall be printed in
. letters of sufficient size and contrast so as to be
readily visible and
legible.
(v)
For asbestos-containing waste material to be
transported
off the facility site, label containers or
wrapped materials with the name
of the waste
generator and the location at which the waste was
generated.
3.
On January 7, 2003, the Illinois EPA inspector asked an EH&S worker to
bring out a bag containing RACM that was bagged, cleaned and ready to be removed
from the facility. [Hancock Affidavit,
~11]
The bag that EH&S' worker brought out in
response to this request did not contain any moisture and was easily crumbled by hand.
[Hancock Affidavit,
~11]
20
4.
The bag containing RACM was not labeled with an OSHA-specified label.
[Hancock Affidavit,
~II]
5..
Respondent failed to adequately wet and keep wet, containerize, and label
all regulated asbestos-containing waste materials. Additionally, asbestos was found
outside
of the work area, which was exposed to the outside air. Respondent did not use a
containment area at the facility. These conditions caused the discharge
of visible
emissions. [Hancock Affidavit,
~~4-5,
7-11] Accordingly, Respondent did not comply
with
40 CFR 61.150(a)(I), because it both; (1) discharged visible emissions of particulate
asbestos-containing material; and (2) did not use one
of the emission control and waste
treatment methods outlined in
40 CFR 61.150(a)(I)-(4).2
6.
By violating 61. 150(a) (1), Respondent also violated Section 9.1 (d)(1) of
the Act, 415 ILCS 5/9.1 (d)(I) (2004).
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays
for the entry
of summary judgment in its favor and against Respondent,
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., on Count VI of the First
Amended Complaint for the reason that the pleadings, admissions on file, and affidavits
show that there is no genuine issue
as to any material fact and that Complainant is
entitled to judgment as a matter
of law. Specifically, Complainant seeks an order:
I.
Finding that Respondent has violated Section
9.1 (d)( I) of the Act and 40
CFR 61.150(a)(1);
2.
Ordering Respondent to cease and desist from further violations of Section
9.1 (d)(1) of the Act and 40 CFR 61.150(a)(I);
2 Also, Respondent did not comply with 40 CFR 61.1S0(a)(I)-(4): (a)(2) requires forming the ACM into
non-friable pellets; (a)(3) applies to demolition activities where the asbestos is
not
removed; and (a)(4)
requires prior Illinois EPA approval.
See
40 CFR 61.1S0(a)(I)-(4).
21
-----------------------,
3.
Assessing against Respondent a civil penalty of Eleven Thousand Dollars
($11,000.00) for the reasons explained more fully herein.
4.
Requiring Respondent to pay all costs expended by the State in pursuit of
this action, including expert witness, consultant, and attorney fees; and
5.
Granting such other relief as this Board deems appropriate and just.
G.
Count VII:. Respondent Failed to Deposit RACM At A Permitted
Site as Soon as Was Practical
1.
Complainantrealleges and incorporates by reference into its motion for
summary judgment on Count VII all factual statements and statements
of law contained
in its motion for summary judgment on Counts
I through VI.
2.
Sections 61.150(b )(1) set forth within the NESHAP for asbestos, 40 CFR
61.150(b)(I) (October
10,2003), titled,
Standardfor Waste Disposalfor Manufacturing,
Fabricating, Demolition, Renovation, and Spraying Operations,
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. Respondent failed to dispose of all RACM and asbestos-containing waste
material generated during asbestos removal activities as soon as was practical. [Hancock
Affidavit,
~12]
22
4. Respondent, by its failure as alleged herein, has violated Section 9.1 (d)(l) of
the Act, 415 ILCS 5/9.1 (d)(l) (2004), and 40 CFR 61.150(b).
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, prays
for the entry
of summary judgment in its favor and against Respondent,
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., on Count VII of the First
Amended Complaint for the reason that the pleadings, admissions on 'file, and affidavits
show that there is no genuine issue as to any material fact and that Complainant is
entitled to judgment as a
matter oflaw. Specifically, Complainant seeks an order:
I.
Finding that Respondent has violated Section
9.1 (d)( I) of the Act and 40
CFR 61.150(b);
2.
Ordering Respondent to cease and desist from any further violations of
Section 9.I(d)(I) of the Act and 40 CFR 61.150(b);
3.
Assessing against Respondent a civil penalty of Eleven Thousand Dollars
($11,000.00) for the reasons explained more fully herein;
4.
Requiring Respondent to pay all costs expended by the State in pursuit of
this action, including expert witness, consultant, and attorney fees; and
5.
Granting such other relief as this Board deems appropriate and just.
IV.
REMEDY
The September 16, 2004 and January 6, 2005 Board Orders in this cause provide,
in pertinent part, as follows:
Accordingly, the Board further directs the hearing officer to advise the parties that
in summary judgment motions and responses, at hearing, and in briefs, each party
should consider:
(I) proposing a remedy for a violation, if any (including whether '
to impose a civil penalty), and supporting its position with facts and arguments
that address any or all
of the Section 33(c) factors; and (2) proposing a civil
penalty,
if any (including a specific total dollar amount and the portion of that
amount attributable to the respondent's economic benefit,
if any, from delayed
23
compliance), and supporting its position with facts and arguments that address
any or all
of the Section 42(h) factors ....
Pursuant to the September 16, 2004 and January 6, 2005 Board Orders,
Complainant is proposing a remedy for Respondent's violations of Sections 9(a) and
9.l(d) of the Act, 415 ILCS 5/9(a) and 9.1 (d) (2004), Section 201.141 of the Board Air
Pollution Regulations, 35 Ill. Adm. Code 201.141, and Sections 61.145(b)(I), (b)(3)(iv),
(b)(4)(vi), (c)(3), and (c)(6)(i), and 61.150(a)(I) and (b)(I)
of the NESHAP for asbestos,
40 C.F.R. 61. 145(b)(1), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and 61. 150(a)(l) and
(b)(I), and states as follows:
A.
Section 33(c) Factors:
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;
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.
In response to these factors, the Complainant states the following:
24
1.
The impact to the public resulting from Respondent's failure to utilize
work practice standards prescribed by the asbestos NESHAP during asbestos removal
activities resulted in the emission
of asbestos, a known carcinogen, which threatened
human health and the environment, especially the workers on site and the nearby
neighborhood.
In addition, the Illinois EPA and the public were not privy to information that is
important to the control
of air pollution in Illinois. First, Respondent failed to state an
estimate
of the amount of Category I and II non-friable asbestos that would not be
removed from 4103
W. State Street, Rockford, Winnebago County, Illinois. Second,
Respondent did not notify the Illinois EPA that asbestos removal activities commenced
on January
6, 2003, rather than January 2, 2003, as it was stated in Respondent's
Notification
of Demolition and Renovation.
2.
The Site that is the subject of the Complaint, has potential social and
economic value in the even the land is sold and developed as commercial property
following removal
of asbestos and demolition of the building.
3.
Given that the violations of the Act, Board Regulations, and NESHAP for
asbestos that are the subject
of the State's complaint resulted from the improper handling
and disposal
ofRACM at a facility, the suitability or unsuitability of the pollution source
is not an issue in this matter.
4.
Complying with the applicable provisions
of the Act, the Board's Air
Pollution Regulations and the NESHAP for asbestos was both technically practicable and
economically reasonable.
EH&S failed to take even the most minimal actions necessary
25
Electronic Filing - Received, Clerk's Office, March 31, 2009
to control asbestos emissions, including a containment area with negative air, a
decontamination unit, a bagout area, or utilizing amended water spray.
5.
Complainant states that Respondent has subsequently complied with the
Act, the Board Regulations, and the
NESHAP for asbestos.
A civil penalty should be assessed against Respondent because
of the adverse
impact the exposure to asbestos, a known carcinogen, could have had on human health
and the environment.
V.
EXPLANATION OF CIVIL PENALTIES REQUESTED
Section 2(b) of the Act, 415 ILCS 5/2(b) (2006), provides:
It
is the purpose of this Act, as more specifically described in later
sections, to establish a unified, state-wide program supplemented
by private remedies, to restore, protect and enhance the quality
of
the environment,
and to assure that adverse effects upon the
environment are fully considered and borne by those who cause
them.
(emphasis added)
The principal reason for penalties for violations
of the Act is to aid in
enforcement.
Punitive considerations are secondary.
Tri-County Landfill Companyv.
Illinois Pollution Control Board,
41 Ill.App.3d 249, 353 N.E.2d 316, 325 (2nd Dist.
1976).
Section 42(a)
of the Act, 415 ILCS 5/42(a) (2006), provides in pertinent part, as
follows:
a)
Except as provided in this Section, any person that violates
any provision
of this Act or any regulation adopted by the
Board, or any permit or term or condition thereof, or that
violates any order
of the Board pursuant to this Act, shall
be liable for a civil penalty
of not to exceed $50,000 for the
violation and an additional civil penalty
of not to exceed
$10,000 for each day during which the violation continues;
26
Electronic Filing - Received, Clerk's Office, March 31, 2009
Penalties for violations of the Act and regulations are calculated according to the
formula contained in Section 42(a), 415
ILCS 5/42(a) (2006). The statutory maximum is
calculated as follows:
Count I
1 violation of Section 9(a)
1 violation
of Section 201.141
Count II
$50,000
$50,000
1 violation of Section 9.1 (d)(1)/40 C.F.R. 61. 145(b) (iv)(6) $50,000
Count III
1 violation of Section 9.1 (d)(1)/40 C.F.R. 61.145(b)(I)
$50,000
1 violation of Section 9.1 (d)(1)/40 C.F.R. 61. 145(b)(3)(iv) $50,000
Count IV
1 violation of Section 9. 1 (d)(1)/40 C.F.R. 61.145(c)(3)
1 violation continuing
17 days
Count V
1 violation of Section 9.1 (d)(I)/40 C.F.R. 61.145(c)(6)(i)
1 violation continuing
17 days
Count VI
1 violation of Section 9.1 (d)(1)/40 C.F.R. 61. 150(a)(1)
1 violation continuing
17 days
Count VII
1 violation of Section 9.1 (d)(1)/40 C.F.R. 61. 150(b)(1)
1 violation continuing
17 days
Total
$50,000
$170,000
$50,000
$170,000
$50,000
$170,000
$50,000
$170,000
$1,130,000
Consideration
of Section 42(H) Factors
Section 42(h) of the Act, 415 ILCS 5/42(h) (2006), provides:
27
In determining the appropriate civil penalty to be imposed under
... , 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;
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," 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.
In response to these factors, the Complainant states as follows:
1.
The duration of the violations that are the subject of the Complaint are
alleged by Complainant to have occurred from at least January 7,
2003 through August
14,2003. The gravity of the alleged violations is severe, as a significant amount of
asbestos containing material was disturbed during the renovation of the buildings at the
28
Electronic Filing - Received, Clerk's Office, March 31, 2009
facility, exposing workers and the public to carcinogenic asbestos fibers. Furthermore,
on or after August 25,
2003, Illinois EPA received information that the asbestos
abatement activities at the facility were not completed until August
14,2003.
Accordingly, from at least January 7, 2003 through August 14,2003, Respondent caused
or threatened air pollution exposing persons in the neighborhood to the severe health
effects
of carcinogenic asbestos fibers resulting from the improper handling and disposal
ofRACM.
2.
Respondent did not act diligently in this matter. Respondent failed to
ensure that all asbestos containing material was properly removed, wetted and maintained
wet, sealed in leak-proof containers, and transported to a waste disposal site permitted to
receive such waste. Additionally, Respondent failed to inform the Illinois
EPA that the
asbestos removal activities commenced on January 6,
2003, rather than January 2,2003,
the date stated in the original Notification of Demolition and Renovation. Finally, the
Notification
of Demolition and Renovation did not state the amount of asbestos that
would not be removed during demolition
of the building.
3.
Respondent received an economic benefit by failing to properly conduct
asbestos removal activities in compliance with the Act, Board Regulations, and asbestos
NESHAP regulations.
It
is unclear the extent of this economic benefit of non-
compliance, because Respondent has repeatedly failed to provide the necessary financial
information to Complainant. Notwithstanding, given that Respondent delayed or avoided
costs associated with the proper removal
ofRACM utilizing the requisite work methods
and procedures to ensure compliance with the
NESHAP for asbestos, the Act, and Board
29
regulations, the Complainant maintains that Respondent received an economic benefit
resulting from its noncompliance.
4.
Although the maximum civil penalty is $1,130,000, Complainant believes
that $56,500, or 5% of the maximum civil penalty will serve to deter further violations by
Respondent and to otherwise aid in enhancing voluntary compliance with the Act, Board
Regulations,and the
NESHAP for asbestos by Respondent and other persons similarly
subject to the Act, Board Regulations, and the NESHAP for asbestos.
5.
To Complainant's knowledge, Respondent has had no previously
adjudicated violations
of the pertinent laws and regulations.
6.
Self-disclosure is not at issue in this matter.
7.
Respondent did not offer to perform a supplemental environmental
program.
These aggravating and mitigating factors provide guidance to the Board in
determining the appropriate amount
of a civil penalty in an environmental enforcement
case. Accordingly, the Complainant brings these factors to the Board's attention and
requests a civil penalty
of $56,500.00
WHEREFORE,
Complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board grant its Motion for Summary Judgment against
Respondent,
ENVIRONMENTAL HEALTH
&
SAFETY, SERVICES, INC., an Illinois
corporation, on all Counts, award the relief requested
of $56,500.00, and take such other
action as the Board believes to be appropriate and just.
30
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
by LISA MADIGAN
Attorney General
of the State of Illinois
MATTHEW
1. DUNN, Chief
Environmental Enforcement! Asbestos
Litigation Division
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
BY:
------"V~fJJNM~A_(1_,L,,-_
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau North
69 W. Washington, Suite
1800
Chicago, Illinois 60602
(312) 814-0608
31
CERTIFICATE OF SERVICE
I, VANESSA M. CORDONNIER, an Assistant Attorney General, do certify that I
caused to be mailed this
31 st day of March, 2008, the foregoing Motion for Summary
Judgment upon the person listed on said notice, by certified mail.
VANESSA M. CORDONNIER
Assistant Attorney General
Environmental Bureau
69 West Washington,
18
th
Floor
Chicago, IL
60602
312-814-0608
Electronic Filing - Received, Clerk's Office, March 31, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPL.E
OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of
the State of Illinois,
Complainant,
vs
ENVIRONMENTAL HEALTH
&
SAFETY
SERVICES, INC.
Respondent.
ANSWER
)
)
)
)
.)
)
)
)
)
)
)
)
PCB No.
05-51
(Enforcement-Air)
NOW COMES the Respondent, ENVIRONMENTAL HEALTH & SAFETY SERVICES,
INC.,
by its attorneys, SCHLUETER ECKLUND and for its answer to the First Amended
Complaint states as follows:
-COUNTI
AIR POLLUTION
1.
Respondent admits the allegations contained in paragraph 1.
2.
Respondent admits the allegations contained in paragraph 2.
3.
Respondent admits the allegations contained in paragraph 3.
4.
Respondent admits the allegations contained in paragraph 4.
5.
Respondent admits the business was based in Winnebago County, Illinois, but
denies that the registered office was
located at 1304 Derby Lane.
.,
-1-
~
f\;
\
1ft
>C
:Ii:
.-
-
(I
-t
6.
Respondent admits contracting with the owner of the former Lincoln Park
School to remove and dispose of regulated asbestos-containing material, but denies the
remaining
allegations contained in paragraph 6.
7.
Respondent has insufficient knowledge regarding the allegations contained in
paragraph 7 to form an opinion and therefore denies the same.
8.
Respondent has insufficient knowledge as to the allegations contained in
paragraph 8, notes the notification would speak for itself, therefore denies the same.
9.
Respondent has insufficient knowledge regarding the allegations contained in
paragraph 9 to form an opinion and therefore denies the same.
10.
Respondent denies the allegations contained in paragraph 10.
11.
Respondent denies the allegations contained in paragraph 11.
12.
Respondent denies the allegations contained in paragraph 12.
13.
Respondent has insufficient knowledge about the allegations contained in
paragraph 13 and therefore denies the same.
14.
Respondent has insufficient
knowledge as to the allegations contained in
paragraph 14 and therefore denies the same.
15.
Complainant purports to state the law which Respondent maintains speaks for
itself.
16.
Complainant purports to state the law which Respondent maintains speaks for
itself.
17.
Complaint purports to state the law which Respondent maintains speaks for
itself.
-2-
,.
18.
Complaint purports to state the law which Respondent maintains speaks for
itself.
19.
Complaint purports to state the law which Respondent maintains speaks for
itself.
20.
Complaint
purports to state the law which Respondent maintains speaks for
itself.
21.
Complaint purports to state the law which Respondent maintains speaks for
itself.
22.
Respondent denies the
allegations contained in paragraph 22.
WHEREFORE, the Respondent,
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES,
INC., respectfully
requests that the Board enter an Order against the Complainant in favor
of the Respondent, dismissing the complaint awarding to Complainant all costs, including
expert witnesses,
consultant and attorney's fees, and to grant such other and further relief
as the Board deems appropriate and just.
COUNT II
FAILURE TO PROVIDE A COMPLETE NESHAP FOR ASBESTOS NOTIFICATION
14.
Respondent realleges and incorporates by reference herein its answers to
paragraphs 1 through 14 of Count I as its answers to paragraph '1 through 14 of this Count
II.
15.
Complainant has cited the law which Respondent maintains speaks for itself.
16.
Complainant has cited the law which Respondent maintains speaks for itself.
17.
Complainant has cited the law which Respondent maintains speaks for itself.
-3-
18.
Complainant has cited the law which Respondent maintains speaks for itself.
19.
Respondent has insufficient information to form
an opinion as to the allegations
stated in paragraph 19 and therefore denies the same.
20.
Respondent has insufficient information to form an opinion as to the allegations
stated in paragraph 20 and therefore denies the same.
21.
Complainant has cited the
law which Respondent maintains speaks for itself.
22.
Respondent has insufficient knowledge to form a belief as to the allegations
contained in paragrapri 22 and therefore denies the same.
23.
Respondent denies the
allegations contained in paragraph 23.
24.
Respondent denies the
allegations contained in paragraph 24.
25.
Complainant has cited the
law which Respondent maintains speaks for itself.
26.
Respondent has insufficient knowledge to form a
belief as to the allegation
contained in paragraph 26 and therefore denies the same.
27.
Respondent denies the
allegations contained in paragraph 27.
28.
Complainant has cited the law which Respondent maintains speaks for itself.
29.
Respondent denies the
allegations contained in paragraph 29.
30.
Respondent denies the allegations contained in paragraph 30.
WHEREFORE, the Respondent, ENVIRONMENTAL HEALTH
&
SAFETY SERVICES,
INC., respectfully
requests that the Board enter an Order against the Complainant and in
favor of the Respondent dismissing this Count and requiring Complainant to pay all costs of
this proceeding, including expert witnesses, consultant and attorney's fees, and grant such
other and further relief as the Board deems appropriate and just.
-4-
COUNT III
FAILURE TO TIMELY SUBMIT
A NESHAP FOR ASBESTOS NOTIFICATION
1-29. Respondent realleges and incorporates by reference herein, Respondent's
answers to paragraphs 1 through 29
of Count II as paragraphs 1 through 29 of this Count
III.
30.
Complainant has cited the lawwhich Respondent maintains speaks for itself.
31.
Respondent denies the allegations contained in paragraph
31.
32.
Respondent denies the allegations contained in paragraph 32.
WHEREFORE, the Respondent,
ENVIRONMENTAL HEALTH & SAFETY SERVICES,
INC.,
respectfully requests that the Board enter an Order against the Complainant and in
favor of the Respondent dismissing this Count and requiring Complainant to pay all costs of
this proceeding, including expert witnesses, consultant and attorney's fees, and grant such
other and further relief as the Board deems appropriate and just.
COUNT IV
FAILURE TO
ADEQUATELY WET ALL RACM
PRIOR TO STRIPPING FROM STRUCTURES
1-27. Respondent realleges and incorporates by reference its answers to
paragraphs
1
through 27 of Count II as its answers to paragraphs
1
through
27'
of this Count
IV.
28.
Complainant has cited the law which Respondent maintains speaks for itself.
29.
Respondent denies the allegations contained
in paragraph 29.
30.
Respondent denies tre allegations contained in paragraph 30.
-5-
WHEREFORE, the Respondent, ENVIRONMENTAL HEALTH & SAFETY SERVICES,
INC.,
respectfully requests that the Board enter an Order against the Complainant and in
favor of the Respondent dismissing this Count and requiring Complainant to pay all costs of
this proceeding, including expert witnesses, consultant and attorney's fees, and grant such
other and further relief as the Board deems appropriate and just.
COUNTV
FAILURE TO ADEQUATELY WET ALL RACM
UNTIL COLLECTION
1-27. Respondent realleges and incorporates by reference herein its answers to
paragraphs 1 through 27 of Count II as its answers to paragraphs 1 through 27 of this Count
V.
28.
Complainant has cited the lawwhich Respondent maintains speaks for itself.
29.
Respondent denies the allegations contained in paragraph 29.
30.
Respondent denies the allegations contained in paragraph 30.
WHEREFORE, the Respondent, ENVIRONMENTAL HEALTH & SAFETY SERVICES,
INC.,
respectfully requests that the Board enter an Order against the Complainant and in
favor
of the Respondent dismissing this Count and requiring Complainant to pay all costs of
this proceeding, including expert witnesses, consultant and attorney's fees, and grant such
other and further relief as the Board deems appropriate and just.
COUNT VI
FAILURE
TO ADEQUATELY WET AND KEEP WET
ASBESTOS-CONTAINING WASTE MATERIAL
1-27.
Respondent realleges and incorporates by reference herein its answers to
-6-
Electronic Filing - Received, Clerk's Office, March 31, 2009
paragraphs 1 through 27 of Count II as its answers to paragraphs 1 through 27 of this Count
VI.
28.
Complainant has cited the law which Respondent maintains speaks for itself.
29.
Respondent denies the allegations contained in paragraph 29.
30.
Respondent denies the allegations contained in paragraph 30.
WHEREFORE,
the Respondent, ENVIRONMENTAL HEALTH
&
SAFETY
SERVICES, INC., respectfully requests that the Board enter an Order against the
Complainant and in favor of the Respondent dismissing this Count and requiring Complainant
to pay all costs of this proceeding, including expert witnesses, consultant and attorney's
fees, and grant such other and further
relief as the Board deems appropriate and just.
COUNT VII
FAILURE TO DEPOSIT
RACM AT A PERMITTED SITE
1-27. Respondent realleges and incorporates by reference herein its answers to
paragraphs 1 through 27 of Count II as its answers to paragraphs 1 through 27 of this Count
VII.
28.
Complainant has cited the law which Respondent maintains speaks for itself:
29.
Respondent denies the allegations contained in paragraph 29.
30.
Respondent denies the allegations contained in paragraph 30.
WHEREFORE,
the Respondent, ENVIRONMENTAL HEALTH & SAFETY SERVICES,
INC.,
respectfully requests that the Board enter an Order against the Complainant and in
favor
ofthe Respondent dismissing this Count and requiring Complainant to pay all costs of
Ii
-7-
this proceeding, including expert witnesses, consultant and attorney's fees, and grant such
other and further
relief as the Board deems appropriate and just.
Bryan
G. Selander #316
SCHLUETER ECKLUND
4023 Charles Street
Rockford, IL 61108
(815) 229-5333
-8-
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF
THE STATE OF ILLINOIS
)
)
Complainant,
)
vs.
)
.
)
ENVIRONMENTAL HEALTH AND SAFETY, an)
Illinois corporation,
)
)
Respondent.
)
TO:
Mr. Bryan G. Selander
Schlueter
Ecklund
4023 Charles Street
Rockford, IL 6] ] 08
NOTICE OF FILING
Mr. Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
PCB
OS-51
(En forcement -Ai r)
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk of the Pollution Control Board a copy of the Complainant's Request for
Admission
of Facts, a copy of which is attached and herewith served upon you.
By:
~~"
Katherine M.
Haus~
'~'-Dated:
.f>e-.&w ..........
I~"
(
2-cIOS
PEOPLE OF THE STATE OF ILLINOIS
LISA
MADIGAN
Attorney General
of the State of Illinois
By: Assistant Attorney General Katherine
M. Hausrath
Environmental Bureau
188 West Randolph, 20
th
Floor
Chicago, IL
60601
312-814-0660
B
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
by
LISA MADIGAN, Attomey General
)
of the State ofI11inois,
)
)
Complainant,
)
)
vs.
)
)
ENVIRONMENTAL HEALTH AND SAFETY
)
SERVICES, INC., an lIlinois corporation
)
)
Respondent.
)
PCB No. 05-51
(Enforcement - Air)
COMPLAINANT'S FIRST REQUEST FOR ADMISSION OF FACTS
ON RESPONDENT ENVIRONMENT AL HEALTH AND SAFETY SERVICES, INC.
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attomey
General
of the State of Illinois, pursuant to 35 Illinois Administrative Code Section 101.618,
hereby serves the following Request for Admission
of Facts upon Respondent,
ENVIRONMENTAL HEALTH AND
SAFETY SERVICES, INC., to be answered in writing,
under oath, within 28 days for the date
of service hereof.
. Failure
to respond to the following requests to admit within 28 days may have severe
consequences. Failure to respond to the following requests will result
in all the facts requested-
being deemed admitted as true for this proceeding. If you have any questions about this
procedure, you should contact the hearing officer assigned to this proceeding
or an attorney.
INSTRUCTIONS
The Illinois Pollution Control Board ("Board")'s Rules for Hearings, Evidence and
Discovery, 35 Ill. Adm. Code
101.618 provides as follows:
a)
General.
All requests to admit must be served upon a party no later than 35 days
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
before hearing. All answers or objections to requests to admit must be served
upon the party requesting the admission within 28 days after the service
of the
request.
b)
Extension
of Time.
In
accordance with Sections 101.522 and 101.610 of this Part,
the hearing officer may extend the time for filing any request, answer,
or objection
either before or after the expiration
of time .
...
...
...
t)
Admission in the Absence of Denial. Each of the matters of fact .and the
genuineness
of each document of which admission is requested is admitted unless,
within
28
days after
serv~ce
thereof, the party to whom the request is directed
serves upon the party requesting the admission either a sworn statement denying
specifically the matters
of which admission is requested or setting forth in detail
the reasons why the party cannot truthfully admit
or deny those matters, or written
objections on the ground that some or all
of the requested admissions are
privileged or irrelevant or that the request is otherwise improper in whole'or in
part.
If written objections to a part of the request are made, the remainder of the
request must be answered within the period designated in the request. A denial
must fairly address the substance
of the requested admission.
g)
Partial
D~nial
or Qualification. If good faith requires ihat a party deny a part of a
matter for which an admission is requested, or
if a part requires qualification, the
party must specify the part which is denied or qualified and admit only the
remainder.
h)
Objection. Any objection to a request or to any answer must
be stated with
specificity, and will be heard by the hearing officer upon notice and motion
of the
party making the request.
i)
Effect of Admission. Any admission made by a party pursuant to a
r~quest
under
this Section is for the purpose
of the pending proceeding only.
It
does not
constitute an admission by the party for any other purpose and may not be used
against him
in any other proceeding.
DEFINITIONS
-2 -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
I. "Respondent" or "EH&S" shall mean Environmental Health and Safety Services, Inc.,
and any
of Respondent's, agents, representatives, successors or assigns, or any other person
acting or believed by Respondents to have acted on their behalf.
2.
"Facility" shall mean the fonner Lincoln Park School, located at 4103 West State
Street,
Rockford, Winnebago County, Illinois.
3. "Or" shall mean and/or wherever appropriate.
4. "Illinois EPA" and/or "IEPA" means the Illinois Environmental Protection Agency.
5. "ACM" shall mean asbestos-containing material.
6. "Notification" shall mean the Notification of Demolition and Renovation, sent by
EH&S to Illinois EPA, dated December 6, 2002.
7. Unless otherwise stated, all Requests to Admit refer to the time period of January
2002 until the time of this filing.
8. All terms not specifically defined herein shall have their logical ordinary meaning,
unless such terms are defined in the Act or the regulations promulgated thereunder,
in which case
the appropriate
or regulatory definitions shall apply.
FACT NO.1:
Admit that EH&S was located at 1304 Derby Lane, Rockford, Winnebago County,
Illinois
61107.
RESPONSE:
FACT NO.2:
-3 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
. Admit that EH&S' registered agent is located at 4023 Charles Street, Rockford,
Winnebago County, lllinois
61108.
RESPONSE:
FACT NO.3:
Admit that EH&S conducts asbestos consulting services, including building inspections,
asbestos abatement project management, and asbestos removal and disposal activities, in Illinois.
RESPONSE:
FACT NO.4:
Admit that EH&S owned the demolition or renovation operation at the Facility.
RESPONSE:
FACT NO.5:
Admit that EH&S operated the demolition or renovation operation at the Facility.
RESPONSE:
FACT NO.6:
Admit that EH&S controlled the demolition 'or renovation operation at the Facility.
RESPONSE:
-4 -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
FACT NO.7:
Admit that EH&S supervised the demolition
~r
renovation operation at the Facility.
RESPONSE:
FACT NO. 8:
Admit that EH&S was the asbestos removal contractor at the Facility.
RESPONSE:
FACT NO. 9:
Admit that EH&S sent a Notification of Demolition and Renovation ("Notification") to
the Illinois Environmental Protection Agency
("Illinois EPA") dated December 6,2002.
RESPONSE:
FACT NO. 10:
Admit that the Notification informed the Illinois EPA of scheduled asbestos removal
activities to be conducted within the Facility.
RESPONSE:
FACT NO. 11:
Admit that the Noti fication reported the presence of asbestos at the Facility.
RESPONSE:
-5 -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
FACT NO. 12:
Admit that the Notification stated that the asbestos removal was scheduled to begin on
January
2,2003.
RESPONSE:
FACT NO. 13:
Admit that the Notification stated that the asbestos removal was scheduled to be
completed by January
24,2003.
RESPONSE:
FACT NO. 14:
Admit that the Notification stated that the Facility was to be demolished.
RESPONSE:
'FACT NO.
15:
Admit that EH&S was the entity designated to transport waste from the Facility.
RESPONSE:
-6 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
FACT NO. 16:
Admit that Randall Oldenberger signed the Notification as Owner/Operator of the
Facility.
RESPONSE:
FACT NO. 17:
Admit that Randy Oldenberger was the president of EH&S at the time he signed the
Noti fication.
RESPONSE:
FACT NO. 18:
Admit that the Notification stated that 1,000 linear feet of ACM on pipes was to be
removed from the Facility.
RESPONSE:
FACT NO. 19:
Admit that the Notification stated that 630 square feet of ACM was to be removed from
the boilers at the Facility.
RESPONSE:
FACT NO. 20:
-7 -
___________________________________________ _
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
Admit that the Notification stated that 12,500 square feet of Category I nonfriable
asbestos-containing floor tile was
to be removed from the Facility.
RESPONSE:
FACT
NO.
21:
Admit that the Notification did not state the approximate amount of asbestos that will not
be removed during demolition
of the Facility.
RESPONSE:
FACT
NO.
22:
Admit that on January 7,2003, Illinois EPA inspected the Facility.
RESPONSE:
FACT
NO.
23:
Admit that on January 7,2003, EH&S informed Illinois EPA that asbestos removal
activities had commenced on January
6,2003.
RESPONSE:
FACT
NO. 24:
-8 -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
Admit that EH&S commenced asbestos removal activities at the Facility two working
days after the date stated
in the Noti fication.
RESPONSE:
FACT NO. 25:
Admit that EH&S did not submit to Illinois EPA a notification revising the scheduled
starting date for asbestos removal activities prior to the expiration
of the original scheduled
starting date of January 2, 2003.
RESPONSE:
FACT NO. 26:
Admit that on January 7, 2003, EH&S removed dry friable asbestos-containing boiler
insulation located on one boiler and boiler pipes.
RESPONSE:
FACT NO. 27:
Admit that EH&S dropped said dry friable asbestos-containing boiler insulation onto the
boiler room floor.
RESPONSE:
-9-
ELECTRONIC FILING, RECEIVEP, CLERK'S OFFICE, DECEMBER 19,2005
FACT NO. 28:
Admit that on January 7, 2003 EH&S conducted asbestos removal activities within the
boiler area without utilizing a containment area with negative air.
RESPONSE:
FACT NO. 29:
Admit that on January 7, 2003 EH&S conducted asbestos
remov~l
activities within the
boiler area without utilizing a decontamination unit.
RESPONSE:
FACT NO. 30:
Admit that on January 7, 2003 EH&S conducted asbestos removal activities within the
boiler area without utilizing a bagout area.
RESPONSE:
FACT
NO. 31:
Admit that on January 7, 2003 EH&S conducted asbestos removal activities within the
boiler area without utilizing water spray
to control asbestos emissions.
RESPONSE:
- 10-
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
FACT NO. 32:
Admit that EH&S did not wet all ACM during asbestos removal activities.
RESPONSE:
FACT NO. 33:
Admit that EH&S did not keep all ACM wet until it was collected for disposal.
RESPONSE:
FACT NO.
34:
Admit that on January 7,2003, Illinois EPA inspected one of several bags located in the
boiler room area ofthe.Facility utilized by EH&S to contain insulation.
RESPONSE:
FACT NO.
35:
Admit that on January 7, 2003, the Illinois EPA found that at least one bag located within
the boiler room contained dry friable asbestos-containing boiler insulation.
RESPONSE:
FACT NO. 36:
- 11 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
Admit that the dry friable asbestos-containing boiler insulation that the Illinois EPA
found'in said bag on January 7, 2003, could be easily crumbled by hand pressure.
RESPONSE:
FACT NO. 37:
Admit that within at least one bag utilized to contain dry friable asbestos-containing
boiler insulation inspected by the
Illinois EPA on January 7,2003, neither water nor
condensation was visible.
RESPONSE:
FACT NO. 38:
Admit that on January 7,2003, Illinois EPA collected three samples of dry friable ACM
from the Facility for analytical testing.
RESPONSE:
FACT NO. 39:
Admit that two of the three samples of dry friable ACM collected on January 7, 2003
were collected from inside the boiler room work area.
RESPONSE:
- 12 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
FACT NO. 40:
Admit that one of the three samples of dry friable ACM collected on January 7,2003 was
collected from the area adjacent to the entry door to the work area.
RESPONSE:
FACT NO. 41:
Admit that the analytical testing of the three samples collected on January 7,2003
revealed that each sample contained concentrations of 10-30% of amosite asbestos.
RESPONSE:
FACT NO. 42:
Admit that EH&S did not containerize all ACM at the Facility following the removal of
the ACM.
RESPONSE:
FACT NO. 43:
Admit that EH&S did not label all ACM at the Facility.
RESPONSE:
FACT NO. 44:
- 13 -
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
Admit that EH&S did not wet all ACM at "the Facility.
RESPONSE:
FACT NO. 45:
Admit that during the collection of ACM at the Facility, there was a discharge of
emissions to the outside air.
RESPONSE:
FACT NO. 46:
Admit that during the processing of ACM at the Facility, there was a discharge of
emissions to the outside air.
RESPONSE:
FACT NO.
47:
Admit that during the packaging of ACM at the Facility, there was a discharge of
emissions to the outside air.
RESPONSE:
FACT NO. 48:
- 14 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19,2005
Admit that during the transport of ACM at the Facility, there was a discharge of
emissions to the outside air.
RESPONSE:
BY:
DATE:
December{~,
2005 .
Respectfully submitted,
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
ROSEMARIE CAZEAU, Chief
Environmental Bureau
Assistant Attorney General
~HA~R!{T
~
..
~M-HYL-
Assistant Attorney General
Environmental Bureau
188
W. Randolph Street, 20
th
Floor
Chicago, Illinois
6060 I
Tel: (312) 814-0660
Fax: (312) 814-2347
khausrath@atg.state.illinois.us
-
15 -
Electronic Filing - Received, Clerk's Office, March 31, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005
CERTIFICATE OF SERVICE
I, KATHERINE M. HAUSRA TH, an Assistant Attorney General, do certify that I
caused to be mailed this
~
day of December, 2005, the foregoing REQUESTS FOR
ADMISSION OF
FACTS to the persons listed on the said NOTICE by first-class mail in
a postage prepaid envelope and depositing same with the United States
Postal Service
located at 188 West Randolph Street, Chicago, Illinois,
60601.
It
is hereby certified that a true copy of the foregoing Notice was electronically
filed with the following on December
'1
~
,2005:
Dorothy M. Gunn
Illinois
Pollution Control Board
James
R.
Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 6060 I
~gM'1iA"UsRA~
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20
th
Floor
Chicago, IL
60601
312-814-0660
BEFORE THE ILUNOIS
POLLUTIO~'·J
CO/\li"TlOL BOARD
PEOPLE
OF THE STATE OF ILLINOIS,
LISA MADIGAN,
Attorney General of
the
State of Illinois,
Complainant,
vs
ENVIRONMENTAL HEALTH AND SAFETY
SERVICES, INC.,
an Illinois corporation
Respondent.
\
)
)
)
)
)
)
)
)
PCB No. 05-51
(Enforcement-Air)
RESPONSE TO REQUEST
FOii=i t'l\.OMISS10N
OF FACTS
NOW COMES the Respondent, ENVIROf\IMc}.JTAL HEALTH AND SAFETY
SERVICES, INC., an Illinois corporation, by its attorneys, SCHLUETER ECKLUND and for
its response to Complainant's Request for Admission of Facts states as follows:
1 .
Respondent admits Fact
No.1.
2.
Respondent admits Fact No.2.
3.
Respondent admits Fact No.3.
4.
Respondent denies Fact NO.4.
5.
Respondent denies Fact NO.5.
6.
Respondent denies Fact NO.6.
7.
Respondent denies Fact NO.7.
8.
Respondent admits Fact NO.8.
9.
Respondent admits Cl notification vvas sent but currently is unsure ofthe date
-1-
c
and therefore denies the remaining facts stateci.
10.
Respondent states tha.t the notification sp":;aks for itself..
11.
Respondent states that the notification speaks for itself.
12.
Respondent states that the notification
speal~s
for itself.
13.
Respondent states that the notification speaks for itself.
14.
Respondent states that the notifics.tion :3pe<::lks >for itself.
15.
Respondent denies Fact f\Jo. 15.
16.
Respondent denies Fact No. 16.
17.
Respondent admits Fact No. 17.
18.
Respondent states that the notification
sp~~(?ks
for itself.
19.
Respondent states that the notification
spe<.*s for itself.
20.
Respondent states that the notification sPeaks
fOi
itself.
21.
Respondent states that the notification spt3aks for itself.
22.
Respondent has insufficient knowledge '::0 'form an opinion, therefore denies
the same.
23.
Respondent denies Fact No. 23.
24.
Respondent denies Fact
1\10.
24.
25.
Respondent denies Fact No. 25.
26.
Respondent denies Fact /'lo. 26.
27.
Respondent denies Fact !\lo. 27.
28.
Respondent denies Fact f\lo. 28.
29.
Respondent denie:3 Fact No. 29.
30.
Respondent denies Fact No. 30.
-.2 ..
31.
Respondent denies Fact !\lo. 31.
32.
Respondent
deni'9s Fact No. 32.
33.
Respondent
denies as the
tempeiatlJre~:;
wer,3 below freezing.
34.
Respondent has insufficient
informatio
r
1 to form a belief as to the statement
made in Fact No. 34 and therefore denie$
the same.
35.
Respondent has insufficient
information to form a belief as to the statement
made in Fact No.
35
and therefore denies the same.
36.
Respondent denies Fact No. 36.
37.
Respondent denies Fact No. 37.
38.
Respondent has insufficient information therefore
denies the same.
39.
Respondent denies Fact No. 39.
40.
Respondent has insufficient information to form a belief as to the statement
made in Fact No.
40 and thereiore denies the same.
41.
Respondent has insufficient Information to form a belief as to the statement
made in Fact
No. 41 and therefore denies the same.
42.
Respondent denies Fact No. 42.
43.
Respondent
denies Fact
r·~o.
43.
44.
Respondent
denies FRct No. 44.
45.
Respondent
cenies Fact f\lo. 45.
46.
Respondent denies Fact
1'10.
46.
47.
Respondent
denies Fa.ct No. 47.
48.
Respondent
denies Fact No. 48 .
-
.
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Electronic Filing - Received, Clerk's Office, March 31, 2009
DATE: January 17, 2006
Bryan G. Selander #316
SCHLUETER ECKLUND
4023 Charles Street
Rockford,
IL 61108
(815) 229-5333
Respectfully
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P,L Hf:AI._TH AND SAFETY
SERVICES, !I\!C., e.n ininois corporation, Respondent
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I, BRYAN G. SELANDEr:;,
t\11"(m~e'/
for
r=t::7:sp()n(J:~tlt.
do certify that I caused to be
mailed this 17th day of January, 2006, the foreg{)ing F1E3PONSES TO ADMISSION OF
FACTS to the persons listed on the said NOTICE b'y' 'fitst class mail in a postage
prepaid envelope and depositing same with the United States Postal Service located at
5225 Harrison Avenue, Rockford, IL 61125.
It is hereby certified that a true copy of the foregoing Notice was electronically
filed
with the following on January '17, 2006:
Dorothy M. Gunn
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, IL 60601
BYAN~ELANDER
~ig~
Attorney for Respondent
Schluet;;r Ecklund
4023 Charles Street
Rockford.
IL 61108
(815) 229-5333
Electronic Filing - Received, Clerk's Office, March 31, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by
LISA MADIGAN, Attorney
)
General of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
AFFIDAVIT
PCB No. 05-51
(Enforcement - Air)
I, Dennis Hancock, being duly sworn on oath, depose and state that I am over 21
years of age, have personal knowledge of the facts stated herein, and, if called as a
witness, could competently testify to facts as set forth herein as follows:
1.
I am currently employed by the Illinois Environmental Protection Agency
("Illinois EPA") as an Inspector in the Bureau of Air ("BOA") Asbestos Unit, located in
the LaSalle District Office, 12 Gunia Drive, LaSalle, Illinois. I have held this position
since February 1999. In
2003, I was, and continue to be, an Asbestos Supervisor and
Building Inspector licensed by the State
of Illinois.
2.
As an Inspector, my duties and responsibilities include, in part, performing
inspections
of asbestos removal and/or demolition activities to monitor and ensure such
o
\
Electronic Filing - Received, Clerk's Office, March 31, 2009
activities are performed in compliance with the federal National Emission Standards for
Hazardous Air
Pollutants ("'NESHAP") for asbestos, the Illinois Environmental
Protection Act ("Act") and Pollution Control Board (,'Board") regulations. I am also
responsible for collecting material samples for analysis by an independent laboratory to
determine the presence
of asbestos.
3.
On January 7, 2003, I inspected the former Lincoln Park School located at
4103
W. State St., Rockford, Illinois ("'facility").
4.
During the January 7, 2003 inspection, I observed Environmental Health
& Safety Services, Inc.
("EH&SS") employees removing dry friable regulated asbestos-
containing material
("RACM") from the boiler, located within the facility, and dropping
it onto the floor. When the material fell onto the floor, it broke, causing the visible
emission
of particulate asbestos-containing material.
5.
During the January 7, 2003, inspection, I did not observe EH&SS use
work methods or procedures to prevent the emission
of particulate asbestos-containing
material into the outside air. EH&SS did not establish a negative air containment in the
work area, a bag out area, decontamination unit, obtain a written approval from the
Administrator prior to commencing renovation activities allowing the use
of an
alternative method to remove RACM, maintain at the facility for inspection a daily
temperature log documenting ambient air temperature within the work area, or use
amended water with Hudson sprayers. Additionally, EH&SS' employees
were not
removing protective outer suits utilized during renovation activities before exiting the
boiler room area.
2
Electronic Filing - Received, Clerk's Office, March 31, 2009
6.
During the January 7,2003 inspection, I spoke with EH&SS' president,
Randall Oldenburger. Mr. Oldenburger, informed me that asbestos removal activities
in
the Facility commenced on January 6,2003, which was two working days after the
scheduled starting date
of January 2, 2003 listed in the Notification of Demolition and
Renovation submitted to the Illinois
EPA by EH&SS.
7.
During the January 7, 2003 inspection, I collected two samples of dry
friable RACM from inside the boiler room work area, and one sample from the area
adjacent to the entry door to the boiler room area. I labeled the samples as
"LPS-OO 1",
"LPS-002",
and "LPS-003".
8.
On January 8, 2003, I mailed the three samples with an Illinois EPA Chain
of Custody form to EnviroHealth Technologies, located at 3830 Washington Boulevard,
St. Louis, Missouri, for analytical testing of the samples.
9.
On January 24,2003, the Illinois EPA received from EnviroHealth
Technologies test data evidencing the presence
of asbestos in concentrations greater than
1
%
within samples collected by the Illinois EPA, numbered LPS-OO 1, LPS-002, and
. LPS-003, a copy of which is maintained by the Illinois EPA as an official record during
the normal course
of business.
10.
During the January 7, 2003 inspection, I did not observe EH&SS
employees using wet methods to control the discharge of particulate asbestos-containing
material. I did not observe moisture on the boiler or the boiler pipes, nor was any liquid
or water on the floor. Dry friable suspect RACM material was visible at various
locations within the boiler room, including on the floor.
3
11.
During the January 7, 2003 inspection, I asked an EH&SS worker to bring
out a bag stored at the facility containing RACM that was cleaned and ready to be
removed from the facility. Having inspected the bag produced by EH&SS, I did not
observe any moisture within the bag and material contained within the bag was easily
broken and crumbled by hand pressure. Additionally, the bag containing RACM was not
labeled with an OSHA-specified label.
13.
EH&SS did not promptly dispose of all RACM and asbestos-containing
waste material generated during asbestos removal activities as soon as was practical
having stored bags containing RACM removed from facility components within the
building.
14.
Attached to this affidavit is a certified copy of the following:
a.
Bi-Weekly Report from Public Health & Safety, Inc. summarizing
asbestos remediation and air clearance activities performed, in part, at the facility from
August
11,
2003 through August 21, 2003 to facilitate the removal and disposal of
regulated asbestos-containing waste material and asbestos contamination generated by
EH&SS.
15.
I received the above-described document via fax on August
26,2003.
16.
On March 19,2009, I verified that the above-described document is a true
and correct copy
ofthe document maintained within the Illinois EPA's file, located in
LaSalle, Illinois, relative to "Environmental Health and Safety Services Inc.", and that the
original copy
of the document received by the Illinois EPA remains in the
aforementioned file.
4
Electronic Filing - Received, Clerk's Office, March 31, 2009
17.
I recognize the document described in paragraph 14 ofthis affidavit
because
I
verified that the document exists in the appropriate file.
FURTHER, AFFIANT
SA YETH NOT.
SUBSCRIBED
and SWORN to
before me
this~
day
of March, 2009.
~4A-t(
OTARY PUBLIC
J&;!;
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.OFFlCIAL SEAL"
SUSAN It FOUST
NOTARY
PUBlIC, STATE OF
IlUNOI8
MY COMMISSION EXPIRES
04109112
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DENNIS HANCOCK
03~3:/
2009 OS: 59 FAX':'OS 957
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ANTHONY G CATULLO
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An orga4lization
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for each corporation, partnership, or other business
you
owr(ec;l, operated, or participated in the past 5 years
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A list of
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affiliated, owned, or otherwise related entities, including name,
nature
of the relationship, and description of the ownership or other
(5)
interest.
Copies
1
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rtatements for all bank accounts for the past 12 months.
.
PLEASE NOTE: IF ADIDITIONAL SPACE IS NEEDED TO COMPLETE THIS AFFIDAVIT, PLEASE
NOTE
IN TIlE RESPOrPSE TO AN ITEM THAT ADDITIONAL INFORMATION IS ATTACHED.
WHEN ATTACHING ADDITIONAL INFORMATION, IDENTIFY THE ITEM TO WHICH THE
INFORMATION CORItESPONDS. INCOMPLETE INFORMATION WILL RESULT IN THE OFFICE OF
THE STATE FIRE
MARS~L
(O.S.F.M) DENYING YOUR REQUEST TO REDUCE THE AMOUNTS
DEMANDED. OSFM IdlSERVES THE RIGHT TO REQUEST FURTHER INFORMATION IT DEEMS.
NECESSARY
IN
MAK~G
ITS DETERMINATION. THESE REQUESTS ARE MADE SOLELY FOR
THE PURPOSE OF AlQING OSFM IN MAKING A DETERMINATION OF THE FINANCIAL STATUS
OF
THE PARTY AND IMPOSE
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NO OBUGATION WHATSOEVER UPON OSFM.
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Under the
pena1tie~
as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the
und~r~igned
certifies that the statements set forth in this instrument
are true and correct1
,
~xcept
I
as to matters stated to be on information and belief and as
to such matters the [undersigned certifies as aforesaid that he/she verily believes the
same to be true.
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Further
affi~nt
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sayeth naught.
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ANTHONY G. CATULLO
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6
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
AFFIDAVIT
PCB No. 05-51
(Enforcement - Air)
I, William J. Lowry, being duly sworn on oath, depose and state that I am over 21
years of age, have personal knowledge of the facts stated herein, and, if called as a
witness, could competently testify to facts as set forth herein as follows:
1.
From November 6,1998 to Present, I have been president of EnviroHealth
Technologies, Inc., located at
3830 Washington Blvd., Suite 123, St. Louis, Missouri.
2.
As president, I was ultimately responsible for all functions performed by
EnviroHealth Technologies, Inc.
("EnviroHealth").
3.
EnviroHealth is an industrial hygiene laboratory specializing in the
recognition, evaluation, and control
of environmental conditions that may result in
adverse health effects. Asbestos related activities conducted include, but are not limited
to the following: inspecting buildings for the presence
of suspected asbestos-containing
materials, retrieving samples
of suspect materials by State-licensed building inspectors,
analyzing suspect materials for the presence
of asbestos by polarized light microscopy.
E
Analysis is conducted in accordance with protocol established by the National Voluntary
Laboratory Accreditation
Program (''NVLAP'') under the National Institute Standards
and Technology, reporting findings
of materials detected by microscopists, consulting
any party engaging EnviroHealth for asbestos-related activity, asbestos abatement project
management, and air sampling.
4.
EnviroHealth is accredited in the NVLAP for Bulk Asbestos Fiber
Analysis (Laboratory ID Number
200374-0).
5.
In January, 2003, I had the following qualifications:
a.
BA, Chemistry, Westminster College, Fulton, Missouri, 1968
Certified Industrial Hygienist
b.
MS, Industrial Hygiene, Central Missouri State University,
Warrensburg, Missouri,
1993
c.
Certified Industrial Hygienist, American Board of Industrial
Hygiene, Certificate No.
6209, 1993
d.
Licensed Industrial Hygienist, State of Illinois - License No.
00108, 1994
6.
I am familiar with EnviroHealth's testing methods in analyzing and
identifying samples submitted to it by various companies, agencies and organizations.
7.
I am familiar with EnviroHealth's reporting system once the samples are
tested, analyzed and identified.
8.
Attached to this affidavit is a certified copy of the laboratory analysis
report issued by EnviroHealth to the Illinois Environmental Protection Agency
("Illinois
EPA")
on January 24, 2003. This report was kept on file at the laboratory as a record of
this particular testing.
Electronic Filing - Received, Clerk's Office, March 31, 2009
9.
I recognize the record described in paragraph 8 of this affidavit because it
is on EnviroHealth letterhead, it contains the EnviroHealth logo, with which I am
familiar, it bears the signature
of Stuart Kinquist who was an analyst employed by
EnviroHealth in January
of2003, and it bears my own signature.
10.
The record described in paragraph 8 was made in the regular course of
EnviroHealth's business of analyzing and identifying samples.
11.
It
is the regular course of EnviroHealth' s business to make such a record
at the time
of the testing of the sample, or within a reasonable time thereafter.
12.
Upon receipt by EnviroHealth, the sample group would be given a unique
report number and each sample in the group is given a laboratory number by the
receiving agent of EnviroHealth to provide an unbiased format for the analyst and to
maintain recordkeeping and tracking
of the sample(s) as established under NVLAP
protocol.
13.
The samples are then transferred to the laboratory and assigned to an
analyst. The analyst performing and testing signed and dated the chain
of custody form
submitted by Illinois
EPA.
14.
Testing involved the following: NVLAP protocol concerning asbestos
detection using but not limited to Polarized Light Microscopy ,with a dispersion-staining
objective, Stereo Binocular Microscopy followed with Polarized Light Microscopy,
Polarized Light Microscopy used to determine and detect asbestos through birefringence,
sign
of elongation, morphology, and other optical properties.
15.
The result would indicate the type and percentage range of asbestos and
particulates identified and found in the sample.
Electronic Filing - Received, Clerk's Office, March 31, 2009
16.
Once the testing was complete for the sample, the results would be
recorded on an EnviroHealth lab sheet which would indicate the identification and ranges
of percentages of the materials detected by the analyst.
17.
The lab sheet would be attached to the data packet, including the chain of
custody, and signed off by the analyst to the secretary.
18.
The secretary would then prepare a report of the analyst's findings,
matching the EnviroHealth number
to the reference number provided by the client.
19.
A report would then be submitted to the agency, company or organization
indicating the results
of the test. The report was written on EnviroHealth letterhead and
signed by myself. The report stated for whom the test was prepared and the date the
results were sent out. The report also contained the EnviroHealth sample numbers, the
reference sample numbers, analyst signature, and the results
of the analysis.
20.
In
looking for asbestos, one would look for minerals such as chrysotile
and amosite, and other fibrous asbestos minerals. Any percentage
of asbestos found in a
given sample would be reported by the analyst using NVLAP protocol.
21.
The Lab Analysis Report submitted by EnviroHealth on January 24,
2003
to the Illinois EPA indicated that three samples were tested, and these three samples
contained the following:
a.
EnviroHealth Sample No. 57793ILPS-00I 20-30% Asbestos, Amosite
b.
EnviroHealtli Sample No. 57794ILPS-002 20-30% Asbestos, Amosite
c.
EnviroHealth Sample No. 577951LPS-003 10-20% Asbestos, Amosite
10-20% Asbestos, Chrysotile
22.
According to the report, all three samples submitted by Illinois EPA on
January
8, 2003, contained asbestos.
Electronic Filing - Received, Clerk's Office, March 31, 2009
FURTHER, AFFIANT SA YETH NOT.
Subscribed and sworn to
before
me this
~-/-h
day
of
No\w
m b..QJ\
-:-;-2008.
02ptO& D
(]~e!)JV
NOTARY PUBLIC
PEGGY D. RODGERS
Notary Public. Notary Seal
Slate of Missouri. County of Jefferson
~
My
Commission Expires Nov. 13,2009
Commission #05400431
EnviroHealth
,.\)
Technologies
Report No.: 03-01-00144
P.O. #: F A-330l
Illinois Envirorunental Protection Agency
12 Gunia Drive, Suite 2
LaSalle,IL 61301
January 24,
2003
Attn: Mr. Dennis Hancock
Included in this report are test results obtained
on three (3) bulk samples submitted
on January 9,
2003.
The following information was provided by the client:
Project Name: Lincoln Park School
Project
Location: 4103 W. State St., Rockford, IL 61101
The results are presented as follows:
Exhibit
A:
Exhibit B:
Summary of material concentrations reported as a
percentage of the entire sample submitted.
Layer analysis reported separately with microscopist
observations and comments
Exhibits A and B should be evaluated for each sample submitted to obtain a complete
understanding
of analysis performed.
The'United States Envirorunental Protection Agency defines any sample containing
greater than one
(I) percent asbestos as an asbestos-containing material (ACM) (40 CFR
Part 763). Samples determined to have asbestos concentrations greater than one (1)
percent are identified in the test results as asbestos-containing materials.
Material content is determined using polarized light microscopy with dispersion staining
in accordance with
40 CFR 763, Appendix A to Subpart F, "Interim Method of the
Determination
of Asbestos in Bulk Insulation Samples," and all current revisions .
• Hidden Hazard - Visible Solution •
. 3830 Washington Blvd .• Suite 123. Saint Louis. Missouri 63108 • (p) 314.531.9868 • (f) 314.531.9196. www.laboratory-Iesling.com
EnvirOHealth'~
Technologies
Report No.: 03-01-00144
Results reported as trace indicate constituents found at concentrations of less than one (1)
percent.
Envi~oHealth
Technologies, Inc. is accredited
in
the National Voluntary Laboratory
Accreditation Program for Asbestos Fiber Analysis (Laboratory
ID Number 200374-0).
This report may not be used to claim product endorsement by NVLAP or any agency of
the U.S. Government.
This report shall
not be reproduced except in full, without the written approval of
EnviroHealth Technologies, Inc.
This test report relates only to the item tested.
Analysis
By:
Stuart
KinqUist:...l~;w.tt,j!:.....~.,L..IlI<""?~-,-
_____ _
Analyst
Analysis Completed: January 1
0, 2003
Respectfully submitted,
J.
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.
'itftl0
William
Vf1~,
:h;;{rJ"i
91H
President
Lab No.: 57793-57795
WLlSKJpr
• Hidden Hazard - Visible Solution.
3830 Washington Blvd. • Suite 123 • Saint Louis, Missouri 63108 • (p) 314.531.9868 •
(0
314.531.9196 • www.laboratory-lesling.com
Electronic Filing - Received, Clerk's Office, March 31, 2009
EnviroHealth
,.,'
Technologies
Section I of Two Sections
Summary
Analyst's Approval :
~~
)
Client: III Environmental Protection Agency
Report Number: 03-01-00144
EHT Number
57793
57794
57795
TEST REPORT
Sample Identification
LPS-OOl, 1/7/03, Outside Door Of Work Area/Off White
Asbestos,Amosite
20-30%
Unspecified Non-Fibrous Mat'l 70-80%
LPS-002, 1/7/03, Inside Work Area/Off White
Asbestos,Amosite
20-30%
. Unspecified Non-Fibrous Mat'l 70-80%
LPS-003, 1/7/03, Inside Of Work Area/Off White
Asbestos,Chrysotile
10-20%
Asbestos, Amosite
10-20%
Unspecified Non-Fibrous Mat'l 60-70%
• Hidden Hazard - Visible Solution.
3830 Washington Blvd .• Suite 123 • Saint Louis. Missouri 63108 • (p) 314.53l.9868 • (t) 314.531.9196 • www.laboratory-testing.com
EnviroHealth
(~·TeChnOlOgies
Client: III Environmental Protection Agency
Report Number: 03-01-00144
EHT Number:
57793
Section II of Two Sections
Individual Layer Analysis
Analysts's Approval:
~
Identification: LPS-001, 1/7/03, Outside Door Of Work Area/Off White
Dominant Color: Off-White
Gross Sample Appearance: Heterogeneous, Mixed
Sample Type: Thermal Insulation
Layer Number:
1
General Description: Powder, Fibrous
Percent of Total Sample: 100%
::::=======>
Material Content
Asbestos, Amosite
ASBESTOS CONTAINING MATERIAL
Unspecified Non-Fibrous Material
20-30%
70-80%
• Hidden Hazard - Visible Solution.
<========
3830 Washington Blvd.. Suite 123. Saint Louis, Missouri 63\08. (p) 314.531.9868.
(I)
314.531.9196. www.laboratory-testing.com
Electronic Filing - Received, Clerk's Office, March 31, 2009
EnviroHealth
e
Technologies
Client: III Environmental Protection Agency
Report Number: 03-01-00144
EHT Number:
57794
Section II of Two Sections
Individual Layer Analysis
Analysts
I
s Approval:
[SY-,.
Identification: LPS-002, 1/7/03, Inside Work Area/Off White
Dominant Color: Off-White
Gross Sample Appearance: Heterogeneous, Mixed
Sample Type: Thermal Insulation
Layer Number:
1
General Description: Powder, Fibrous
Percent of Total Sample: 100%
========>
ASBESTOS CONTAINING MATERIAL
Material Content
Asbestos, Amosite
20-30%
Unspecified Non-Fibrous Material 70-80%
• Hidden Hazard - Visible Solution.
<========
3830 Washington Blvd. • Suite 123. Saint Louis. Missouri 63lO8 • (p) 314.531.9868 • (f) 314.531.9196 • www.laboratory-testing.com
Electronic Filing - Received, Clerk's Office, March 31, 2009
EnviroHealth
(~
Technologies
Client: III Environmental Protection Agency
Report Number: 03-01-00144
EHT Number:
57795
Section II of Two Sections
Individual Layer Analysis
Analysts's Approval:
[S~
Identification: LPS-003, 1/7/03, Inside Of Work Area/Off White
Dominant Color: Off-White
Gross Sample Appearance: Heterogeneous, Mixed
Sample Type: Thermal Insulation
Layer Number: 1
General Description: Powder, Fibrous
Percent of Total Sample: 100%
========>
ASBESTOS CONTAINING MATERIAL
Material Content
Asbestos,Chrysotile
Asbestos,Amosite
Unspecified Non-Fibrous Material
10-20%
10-20%
60-70%
<========
• Hidden Hazard - Visible Solution.
3830 Washington Blvd .• Suite 123. Saint Louis. Missouri 63108 • (p) 314.531.9868 • (f) 314.531.9196. www.laboralory-Iesting.com
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney
)
General
of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-51
(Enforcement - Air)
AFFIDA VIT
I,
Jan McDow, being duly sworn on oath, depose and state that I am over 21 years
of age, have personal knowledge of the facts stated herein, and, if called as a witness,
could competently testify to the following:
1.
I am currently employed by the Illinois Environmental Protection Agency
("Illinois EPA"), as an Office Associate within the Bureau of Air ("BOA") Asbestos
Unit. I have held this position since September
1, 1996.
2.
As an Office Associate for the BOA Asbestos Unit, my duties and
responsibilities include, in part, receiving, processing, and reviewing notifications
of
demolition and renovation required by the National Emission Standards for Hazardous
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Electronic Filing - Received, Clerk's Office, March 31, 2009
Air Pollutants ("NESHAP") for asbestos, and asbestos fee payments required by the
Illinois Environmental Protection Act ("Act"), received from owners and operators of
demolition and/or renovation activities subject to the NESHAP for asbestos.
3.
From at least 2002 through the present date, when the BOA Asbestos Unit
receives a Notification of Demolition and Renovation, an employee designated as an
Office Associate writes at the bottom
of the notification the date on which the Illinois
EPA received the document and the postmark date located on the envelope in which the
notification was received.
4.
The Office Associate also conducts a preliminary review of each
notification to determine whether each item
of information required by the NESHAP for
asbestos is contained within the notice and whether the notification is timely.
5.
The Office Associate then enters, in part, information contained within the
notification into the Asbestos
Unit's computer database.
6.
The BOA Asbestos Unit also maintains a file containing notification forms
and associated documents. Each notification form that is deemed complete, timely and
complies with the notice requirements prescribed by the NESHAP for asbestos is placed
by me or an Office Associate into a file which is organized according to the name
of the
renovation or demolition contractor or other responsible party who submitted the
notification.
7.
The procedure for processing Notifications of Demolition and Renovation
received by the Illinois
EPA described, in part, herein is the regular business practice of
the BOA Asbestos Unit.
2
Electronic Filing - Received, Clerk's Office, March 31, 2009
8.
Attached to this affidavit is a copy of the Notification of Demolition and
Renovation (attached hereto as Attachment
1) received by the Illinois EPA, from
Environmental Health and
Safety Services, Inc. ("EH&SS"), on December 9,2002,
informing the Illinois EPA of scheduled asbestos removal activities to be performed, by
EH&SS, at 4130 W. State Street, Rockford, Illinois ("former Lincoln Park School").
9.
I am familiar with the BOA Asbestos Unit's recordkeeping and filing
system.
10.
On March 10,2009, I verified that the document identified within
paragraph 8 is aJrue and correct copy
of the original document contained with the Illinois
EPA's EH&SS file maintained by the BOA Asbestos Unit.
11.
I recognize the document described in paragraph 8 of this affidavit
because I verified that the document exists in the appropriate file.
12.
Based upon information maintained within the
BOA Asbestos Unit
records database and records contained within files maintained by the
BOA Asbestos
Unit relative to
EH&SS, the document identified within paragraph 8 is the only
notification the
BOA Asbestos Unit received from EH&SS, prior to January 7,2003,
. informing the Illinois EPA of scheduled asbestos removal activities to be performed at
the former Lincoln Park School, located in Rockford, Illinois. Based upon information
maintained within the
BOA Asbestos Unit records database and records contained within
files maintained by the BOA Asbestos Unit relative to EH&SS, the BOA Asbestos Unit
did not receive from EH&SS a revised Notification of Demolition and Renovation
informing the Illinois EPA
of a new scheduled starting date for asbestos removal
activities at the former Lincoln Park School, prior to the originally scheduled starting date
3
Electronic Filing - Received, Clerk's Office, March 31, 2009
of January 2,2003 set forth within Attachment 1.
FURTHER, AFFIANT SA YETH NOT.
SUBSCRIBED
and SWORN
to before me this 10th day
q~k:
NOTA YPU L C
4
Jan McDow
ileCNQ.
.--
_ N(O'TIFICATION OF DEMOLITION AND RENOVATION
IL 532 1296
APe 430 Rev.03l00
ALL
SECTIONS MUST BE COMPLETED TO AVOID Nonce VIOLATION
'\.
'TYPE. OF NOTlFlCAllUN
(O.OriginallR.Revised/C.Canceled);
.
0
2.
TYPE OF OPERATION (R.Renovat/onJD-DemolA.AnnuaVO-Ordered Demo/E.Emergency Renovation):
3.
FACILITY DESCRIPTICIN (Building Name}:
Address:
City:
ZIP:
Location
01
Asbestos Contahhg Material (ACM) in
8tru~ure:
Bldg. Size:
#
of Firs. ,....
Prior Use: .
Future Use (Demo):
5. WORK HOURS:*
6.
SCHEDULED DATE DEMOLITION:
Start
1-
2. " .•
():3 Complete: 2--
11.../
-
(J.'3
7.
SCHEDULED DATE.
8. REGULATED ASBES1CS
CONTAINING MATERIAL TO BE
REIIOVED (RACM);
REMOVAL:
Start': /.
~&-
03.
Complete: /-:; "1-
l>
NONFRJABLE
ASBESTOS NOT •
TO BE REMOVED (Demolition):
NONFRIABLE ASBESTOS TO
BE
REMOVED:
p.m.
CATEGORY I
CATEGORY II
CATEGORY I
CATEGORY Ii
Pipes (l.n. Ft.)
Surfac;e Area (Sq. Ft.)
State. Zip:
State.
ZIp:
Landfill Permit
#:
Phone:
-MElle" USE 0lIl.".
To
~eglon
1
2
:I
Electronic Filing - Received, Clerk's Office, March 31, 2009
14:
PROCEDU~E,
INCLUDING ANALYTICAL METHOD, USED TO DETECT THE PRESENCE OF ASBESTOS.
P~M1
ILLINOIS LICENSE NUMBER OF INSPECTOR:
·toO.f)S~E7
NAME OF ANALYTICAL TESTING LABORATORY:
/fMIu1
rne-S
16. DESCRIPTION
~OUf;J.I
OF PLAtlNED
1)fA)
DEMOLITION
.1l'6~M!a
OR RENOVATION
S~
WORK:
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-
I
~
eOlU)/1k
As
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'IV
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~ ~-IS'-,~
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N/JIV'IFCi'Y
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16. DESCRIPTION OF WOHK PRACTICES AND ENGINEERING CONTROLS TO BE USED TO PREVENT EMISSIONS AT THE
DEMOLITION OR RENOVATION SITE: Au..-
~~rtJ5.
fIJ«L.
~ I/t)Etp~~
~
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ft,a.uv
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17.
IS DEMOLITION ORDERED BY A GOVERNMENTAL AGENCY?
Y
~
(If Yes. a signed
copy
of Order must
be
attaChed.)
Governmental
represent~,tive
ordering the activity:
Title:
Date
of Order:
Ordered
Demolition Date:
18.
FOR EMERGENCY RE!IIOVATIONS:
A
Date and Hour of EmergElncy:
Description of the Sudden, Unexpected Event (e.g. structure in danger of eminent collapse):
19.
DESCRIPTION OF PROCEDURES TO BE FOLLOWED IN THE EVENT THAT UNEXPECTED ASBESTOS IS FOUND OR
PREVIOUSLY NONFRIA'3LE ASBESTOS
MATERIAL BECOMES CRUMBLED, PULVERIZED, OR REDUCED TO POWDER.
~
as
~1:6-
IfSdsTDS -rver '{J(JXI/l()fl6liu,
..,
1J~6eo I~
IJOO&C
(J
MIL
~ ~
...
f,+f/tIAr£r.¢D f lfIt\.()FlLU!o
~ ~/trflJJ ~.
20.
I CERTIFY THAT AT LEAST ONE REPRESENTATIVE, TRAINED IN THE PROVISIONS OF 40 CFR PART 61,
SUBPART M, SHALL BE ON-SITE DURING DEMOLITION OR RENOVATION, HAVING IN HIS OR HER POSSESSION,
FOR INSPECTION, EVIDENCE _TTHE REQUISITE
~
§D.
I CERTIFY THE ABOVE INFORMATION IS CORRECT.
/2 ... /, -
tJ2-
Signature of Owner/Operator
Date
(Original Signature Only. Photocopy Not Valid)
l;
.Not required under NESHAPS.
Mall this 'onn to: IL Environmental Protection Agency, Atm: Asbestos Unit, P.O. Box 19276, Springfield, IL 62794-9276
Electronic Filing - Received, Clerk's Office, March 31, 2009
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Rev.
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FedU-PlUNTED IN
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10101
14461
I
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
by LISA MADIGAN, Attorney
)
General of the State of Illinois,
)
Complainant,
v.
ENVIRONMENTAL HEALTH
&
SAFETY SERVICES, INC., an Illinois
Corporation,
Respondent.
)
)
)
)
)
)
)
)
)
)
PCB No. 05-51
(Enforcement - Air)
AFFIDAVIT
I, Shannon Coe, being duly sworn on oath, depose and state that I am over 21
years of age, have personal knowledge of the facts stated herein, and, if called as a
witness, could competently testify
to the following:
1.
I am currently employed by the Illinois Environmental Protection Agency
("Illinois
EPA"), as an Office Assistant within the Bureau of Air ("BOA") Division of
Mobile Source Programs. I have held this position since 2006. Prior to my present
position, I was employed as an
Office Assistant within the BOA Asbestos Unit from
2001 through 2006.
2.
As an Office Assistant for the BOA Asbestos Unit, my duties and
responsibilities included, in part, reviewing notifications
of demolition and renovation
required by the National Emission Standard for Hazardous Air
Pollutants ("NESHAP")
for asbestos received from owners and operators of demolition and/or renovation
G
Electronic Filing - Received, Clerk's Office, March 31, 2009
activities subject to the NESHAP for asbestos.
3.
During my employment within the BOA Asbestos Unit, when the BOA
Asbestos Unit received a Notification of Demolition and Renovation, an employee
designated as an
Office Assistant wrote at the bottom of the notification the date on
which the Illinois
EPA received the document and the postmark date located on the
envelope in which the notification was received.
4.
The Office Assistant also conducted a preliminary review of each
notification to determine whether each item
of information required by the NESHAP for
asbestos is contained within the notice and whether the notification was timely.
5.
The Office Assistant then entered, in part, information contained within
the notification into the Asbestos Unit's computer database.
6.
The BOA Asbestos Unit also maintained a file containing notification
forms and associated documents. Each notification form that is complete, timely and
complies with the notice requirements prescribed by the
NESHAP for asbestos was
placed by me or an
Office Assistant employed within the BOA Asbestos Unit into a file
which is organized according
to the name of the renovation or demolition contractor or
other responsible party who submitted the notification.
7.
The procedure for processing Notifications of Demolition and Renovation
received by the Illinois
EPA described, in part, herein was the regular business practice of
the BOA Asbestos Unit.
8.
On December 9, 2002, the Illinois EPA received from Environmental
Health and
Safety Services, Inc. ("EH&SS") a Notification of Demolition and
Renovation informing the Illinois
EPA of scheduled asbestos removal activities to be
2
Electronic Filing - Received, Clerk's Office, March 31, 2009
performed, by EH&SS, at 4130 W. State Street, Rockford, Illinois ("former Lincoln Park
School").
9.
The above-described document was received and processed by me in
accordance with the procedures described in paragraphs 3 through 6
of this affidavit.
FURTHER, AFFIANT
SA YETH NOT.
SUBSCRIBED
and SWORN
to before me this
~
day
of
Fe.b(w~?,
' 2009 .
.
B{1Q~ B,~
NOTARY PUBLIC
.iu:u: •• :":".: •• :-.:-":,,: •• :,,: ••
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:;:
OFFICIAL SEAL
.::
:l:
BRENDA BOEHNER
~:
:j: NOTARY PUBUC, STATE OF flUNOfS :i:
t MY COMMISSION EXPIRES 11.3.2009
:~
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3
Electronic Filing - Received, Clerk's Office, March 31, 2009
