ILLINOIS POLLUTION CONTROL BOARD
April 17, 2008
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CARRI SCHARF MATERIALS COMPANY,
d/b/a FARMDALE SAND & GRAVEL PIT,
an Illinois corporation,
Respondent.
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PCB 08-62
(Enforcement – Water)
ORDER OF THE BOARD (by G.T. Girard):
On April 7, 2008, the Office of the Attorney General, on behalf of the People of the State
of Illinois (People), filed a three-count complaint against Carri Scharf Materials Company, doing
business as Farmdale Sand & Gravel Pit (respondent). The complaint concerns respondent’s
sand and gravel pit located in East Peoria, Tazewell County. For the reasons below, the Board
accepts the complaint for hearing.
Under the Environmental Protection Act (Act) (415 ILCS 5 (2006)), 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 (2006); 35 Ill. Adm.
Code 103. In this case, the People allege that respondent violated Sections 12(a), 12(d), and
12(f) of the Act (415 ILCS 5/12(a), 12(d), 12(f) (2006)), Section 309.102(a) of the Board’s water
pollution regulations (35 Ill. Adm. Code 309.102(a)), and Section 404.101(a)(1) of the Board’s
mine related water pollution regulations (35 Ill. Adm. Code 404.101(a)(1)). The People allege
that respondent violated these provisions by (1) causing or allowing or threatening the discharge
of contaminants into the waters of the State, as will or is likely to create a nuisance or render
such waters harmful or detrimental or injurious; (2) depositing contaminants upon the land in
such place and manner so as to create a water pollution hazard; (3) causing or allowing the
discharge of waste water and storm water without a National Pollutant Discharge Elimination
System (NPDES) permit; and (4) allowing the discharge of waste water into a receiving stream
without an NPDES permit, thereby causing, threatening, or allowing the discharge of
contaminants into the waters of the State. The People ask the Board to order respondent to cease
and desist from any further violations and to pay a civil penalty of $50,000 per violation, with an
additional $10,000 penalty for each day of violation.
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 respondent fails within
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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 respondent 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
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
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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 Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above order on April 17, 2008, by a vote of 4-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board