ILLINOIS POLLUTION CONTROL BOARD
    September 20, 2007
    RANDY GRANT, DONALD GRANT, and
    PATRICIA WALLACE,
    Complainants,
    v.
    CLINE RESOURCE AND DEVELOPMENT
    COMPANY and MACH MINING, L.L.C.,
    Respondents.
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    PCB 07-145
    (Citizens Enforcement - Noise)
    ORDER OF THE BOARD (by A.S. Moore):
    On June 20, 2007, Randy Grant, Donald Grant, and Patricia Wallace (collectively,
    complainants) filed a complaint against Cline Resource and Development Company (Cline) and
    Mach Mining, L.L.C. (Mach Mining) (collectively, respondents).
    See
    415 ILCS 5/31(d) (2006);
    35 Ill. Adm. Code 103.204. Complainants allege that respondents violated Section 24 of the Act
    (415 ILCS 5/24 (2006)) and Sections 900.102, 901.102(a), 901.102(b), and 901.106 of the
    Board’s regulations (35 Ill. Adm. Code 900.102, 901.102(a), 901.102(b), and 901.106).
    Complainants further allege that respondents violated these provisions in the course of operating
    a coal mine, coal mine ventilation, and heavy equipment. Complainants seek a Board order
    directing the respondents to reduce noise levels to a point at which they no longer disturb their
    health or property and to cease and desist from further violations of applicable statutes and
    regulations. The complaint concerns respondents’ coal mine facility located at Liberty School
    Road, Johnson City, Williamson County.
    In an order dated August 9, 2007, the Board directed respondents to file a certified mail
    receipt or other proof of service on the respondents by September 10, 2007, or face dismissal of
    this proceeding.
    See
    35 Ill. Adm. Code 101.304(d). On August 15, 2007, complainants filed a
    certified mail receipt showing service on Mach Mining on June 18, 2007, and a certified mail
    confirmation showing service on Cline on June 20, 2007. On August 16, 2007, both respondents
    filed an answer.
    Section 31(d)(1) of the Environmental Protection Act (415 ILCS 5/31(d)(1) (2006))
    allows any person to file a complaint with the Board. Section 31(d) further provides that
    “[u]nless the Board determines that such complaint is duplicative or frivolous, it shall schedule a
    hearing.”
    Id.
    ;
    see also
    35 Ill. Adm. Code 103.212(a). A complaint is duplicative if it is
    “identical or substantially similar to one brought before the Board or another forum.” 35 Ill.
    Adm. Code 101.202. A complaint is frivolous if it requests “relief that the Board does not have
    the authority to grant” or “fails to state a cause of action upon which the Board can grant relief.”
    Id.
    Within 30 days after being served with a complaint, a respondent may file a motion alleging
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    that the complaint is duplicative or frivolous. 35 Ill. Adm. Code 103.212(b). Neither respondent
    has filed such a motion.
    The Board notes that the form complaint initiating this proceeding asks complainants to
    “[i]dentify any identical or substantially similar case you know of that is already pending before
    the Board or in another forum against this respondent for the same alleged pollution.”
    Complainant’s response in its entirety states that
    [a] suit has been filed in Williamson County Court by, Attorney Jay Schafer of
    111 West Main Street, Marion, Illinois 618-997-5611 he is under retainer for the
    family’s of Phil Anderson, Shirley Davies, and Roland Rogers all located on
    Liberty School Road in Williamson County, Marion, Illinois. This Suit was filed
    in the early 2006.
    In the absence of a motion from either of the respondents, the Board cannot conclude on
    the basis of the complainants’ statement that this matter is duplicative.
    See
    415 ILCS 5/45(b)
    (2006); Mather Investment Properties, L.L. C. v. Illinois State Trapshooters Ass’n., Inc., PCB
    05-29, slip op. at 4, 11-12 (July 21, 2005) (finding complaints before Board and circuit court are
    not duplicative). No evidence now before the Board indicates that complainants’ complaint is
    frivolous.
    The Board accepts the complaint for hearing.
    See
    415 ILCS 5/31(d) (2006); 35 Ill. Adm.
    Code 103.212(a). The Board notes that Cline and Mach Mining both filed answers on August
    16, 2007.
    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) (2006). Specifically, the Board considers the Section 33(c) factors in
    determining, first, what, if anything, to order the respondent to do to address the violation 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.
    If, after considering the Section 33(c) factors, the Board decides to impose a civil penalty
    on the respondent, only then does the Board consider the Act’s Section 42(h) factors in
    determining the appropriate amount of the civil penalty. Section 42(h) sets forth factors that may
    mitigate or aggravate the civil penalty amount, such as the duration and gravity of the violation,
    whether the respondent showed due diligence in attempting to comply, any economic benefit that
    3
    the respondent accrued from delaying compliance, and the need to deter further violations by the
    respondent and others similarly situated.
    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 or 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). An 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, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on September 20, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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