ILLINOIS POLLUTION CONTROL BOARD
    October 4, 2007
    LORETTA THIGPEN,
    Complainant,
    v.
    MORTON MOBILE HOME PARK, LLC,
    d/b/a EDGEWOOD TERRACE MOBILE
    HOME PARK,
    Respondent.
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    PCB 08-12
    (Citizens Enforcement – PWS)
    ORDER OF THE BOARD (by N.J. Melas):
    On July 30, 2007, Loretta Thigpen filed a complaint (Comp.) against Morton Mobile
    Home Park, LLC, an Illinois limited liability company, d/b/a Edgewood Terrace Mobile Home
    Park (Mobile Home Park).
    See
    415 ILCS 5/31(d)(1) (2006); 35 Ill. Adm. Code 103.204. In her
    3-count complaint, Loretta Thigpen alleges that she resides in Edgewood Terrace Mobile Home
    Park operated by respondent, and receives her drinking water from the public water supply also
    operated there by respondent. Complainant Thigpen alleges that, in 2006-2007, respondent
    Mobile Home Park delivered drinking water containing arsenic in excess of the maximum
    contaminant level, and failed to make required notification of the exceedences in violation of
    Section 18 of the Environmental Protection Act (Act) (415 ILCS 5/18 (2006)) and Sections
    611.121(a), 611.301(b) and 611.903 of the Board’s public water supply regulations. 35 Ill. Adm.
    Code 611.121(a), 611.301(b) and 611.903. Edgewood Terrace Mobile Home Park is located in
    the Village of Morton, Tazewell County.
    Section 31(d)(1) of the Act allows any person to file a complaint with the Board. 415
    ILCS 5/31(d)(1) (2006). The Board’s procedural rules provide that “[p]roof of service of initial
    filings must be filed with the Board upon completion of service.” 35 Ill. Adm. Code 101.304(b).
    In response to the Board’s September 6, 2007 order, on September 14, 2007 complainant’s
    counsel filed proof that service was made on the respondent. Complainant’s filing indicates that
    the requested certified mail “green card” return receipt had not been received from the United
    States Postal Service (USPS). In lieu of this indicia of service, complainant provided the USPS
    numbered receipt for the parcel, a printout of the “track and confirm” page from the USPS
    website showing service on August 3, 2007, and e-mail dated September 11, 2007 between
    complainant’s and respondent’s attorneys. The Board accordingly finds that the complaint was
    properly served.
    Section 31(d)(1) further provides that “[u]nless the Board determines that such complaint
    is duplicative or frivolous, it shall schedule a hearing.” 415 ILCS 5/31(d)(1)(2006);
    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
    2
    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 that the complaint is duplicative or
    frivolous. 35 Ill. Adm. Code 103.212(b). Any motion by respondent was accordingly due under
    the rules on or before September 2, 2007. But, in his September 11, 2007 e-mail to respondent’s
    attorney concerning service, complainant’s attorney said that he would not object to the
    timeliness of any motion or filing concerning duplicative or frivolous issues respondent might
    file by September 25, 2007. To date, respondent has made no motion concerning these issues.
    No evidence before the Board indicates that the complaint is duplicative or frivolous.
    Accordingly, the Board now accepts the complaint for hearing.
    See
    415 ILCS 5/31(d)(1) (2006);
    35 Ill. Adm. Code 103.212(a).
    A respondent’s failure to file an answer to a complaint within 60 days after receiving the
    complaint may have severe consequences. Generally, if 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 respondents to have admitted the
    allegation.
    See
    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) (2006). 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.
    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
    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
    3
    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). 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 “voluntarily 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 October 4, 2007, by a vote of 4-0.
    ___________________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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