ILLINOIS POLLUTION CONTROL BOARD
    November 2, 2006
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    PINNACLE GENETICS, L.L.C. and
    PROFESSIONAL SWINE MANAGEMENT,
    L.L.C.,
    Respondents.
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    PCB 07-29
    (Enforcement – Water, Air)
    ORDER OF THE BOARD (by N.J. Melas):
    On October 24, 2006, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a complaint against Pinnacle Genetics, L.L.C. (Pinnacle), and
    Professional Swine Management, L.L.C. (Professional) (jointly, respondents).
    See
    415 ILCS
    5/31(c)(1) (2004); 35 Ill. Adm. Code 103.204. The complaint concerns an 1800-head sow swine
    production facility owned by Pinnacle and located along County Road 600N, approximately 2.5
    miles north of Colmar in LaMoine Township, Mcdonough County. Professional jointly operates
    the facility with Pinnacle. For the reasons below, the Board accepts the complaint for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq
    . (2004)), the
    Attorney General and the State’s Attorneys may bring actions before the Board to enforce
    Illinois’ environmental requirements on behalf of the People.
    See
    415 ILCS 5/31 (2004); 35 Ill.
    Adm. Code 103. Based on observations from inspections by the Illinois Environmental
    Protection Agency on March 2, 2004 and March 29, 2006, the People allege that respondents
    violated Sections 4(h), 9(a), (b), and (c), and 12(a), (d), and (f) of the Environmental Protection
    Act (415 ILCS 5/4(h), 9(a), (b), (c), 12(a), (d), and (f) (2004)) and Sections 201.141, 237.102,
    304.106, 309.102(a), 309.202, 501.402(c)(3), 501.404(b)(1), and 580.105 of the Board’s rules
    (35 Ill. Adm. Code 201.141, 237.102, 304.106, 309.102(a), 309.202, 501.402(c)(3),
    501.404(b)(1), and 580.105). The People allege that the respondents caused or threatened water
    pollution and a water pollution hazard in violation of the Act and the Board’s water pollution
    regulations by improperly storing manure solids, conducting an unpermitted truck wash at the
    facility, and allowing wastewater and manure solids to enter waters of the State. The People
    further allege that the respondents failed to report the releases of livestock waste that occurred as
    a result of the truck wash. The People claim the respondents caused or allowed air pollution and
    operated without an air permit in violation of the Act and Board’s air pollution regulations by
    improperly incinerating dead swine at the facility. The complaint alleges the respondents caused
    or allowed the open burning of veterinary medical waste. Finally, the People claim that the
    respondents violated the Act and Board’s water pollution regulations by undergoing construction
    to double the capacity of the facility without obtaining a stormwater National Pollutant
    Discharge Elimination System permit. The People ask the Board to order the respondents to
    cease and desist from further violation and pay a civil penalty of $50,000 per violation and
    $10,000 for each day the violations continued.
    The Board finds that the complaint meets the content requirements of the Board’s
    procedural rules and accepts the complaint for hearing.
    See
    35 Ill. Adm. Code 103.204(c), (f),
    103.212(c). A respondent’s failure to file an answer to a complaint within 60 days after
    receiving the complaint may have severe consequences. Generally, if the respondents fail within
    that timeframe to file an answer specifically denying, or asserting insufficient knowledge to form
    a belief of, a material allegation in the complaint, the Board will consider the respondents to have
    admitted the allegation. 35 Ill. Adm. Code 103.204(d).
    The Board directs the hearing officer to proceed expeditiously to hearing. Among the
    hearing officer’s responsibilities is the “duty . . . to ensure development of a clear, complete, and
    concise record for timely transmission to the Board.” 35 Ill. Adm. Code 101.610. A complete
    record in an enforcement case thoroughly addresses, among other things, the appropriate remedy,
    if any, for the alleged violations, including any civil penalty.
    If a complainant proves an alleged violation, the Board considers the factors set forth in
    Sections 33(c) and 42(h) of the Act to fashion an appropriate remedy for the violation.
    See
    415
    ILCS 5/33(c), 42(h) (2004). Specifically, the Board considers the Section 33(c) factors in
    determining, first, what to order the respondent to do to correct an on-going violation, if any,
    and, second, whether to order the respondent to pay a civil penalty. The factors provided in
    Section 33(c) bear on the reasonableness of the circumstances surrounding the violation, such as
    the character and degree of any resulting interference with protecting public health, the technical
    practicability and economic reasonableness of compliance, and whether the respondent has
    subsequently eliminated the violation.
    With Public Act 93-575, effective January 1, 2004, the General Assembly changed the
    Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to
    Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed
    compliance is to be determined by the “lowest cost alternative for achieving compliance.” The
    amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as
    the economic benefits, if any, accrued by the respondent as a result of the violation, unless the
    Board finds that imposition of such penalty would result in an arbitrary of unreasonable financial
    hardship.”
    Under these amendments, the Board may also order a penalty lower than a respondent’s
    economic benefit from delayed compliance if the respondent agrees to perform a “supplemental
    environmental project” (SEP). A SEP is defined in Section 42(h)(7) as an “environmentally
    beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action
    . . . but which the respondent is not otherwise legally required to perform.” SEPs are also added
    as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-
    disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section
    42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of
    non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion
    of the penalty that is not based on the economic benefit of non-compliance.”
    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:
    (1) 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
    compliance), and supporting its position with facts and arguments that address any or all of the
    Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address
    these issues in any stipulation and proposed settlement that may be filed with the Board.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on November 2, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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