ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS POLLUTION CONTROL BOARD
April 16, 2009

April 16, 2009

PEOPLE OF THE STATE OF ILLINOIS,

ORDER OF THE BOARD (by G.T. Girard):

On April 6, 2009, the Office of the Attorney General, on behalf of the People of the State

of Illinois (People), filed a two-count complaint against David J. Schultz (Schultz).

See

415

ILCS 5/31(c)(1) (2006); 35 Ill. Adm. Code 103.204. The complaint concerns Mr. Schultz’ real

property located 400 N. Ninth Street, Springfield, Sangamon County. The real property is a

commercial building (Building T), and formerly a part of St. John’s Hospital of the Sisters of the

Third Order of St. Francis.

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 David J. Schultz violated Section 9.1(d)(1) of the

Act, (415 ILCS 5/9.1(d)(1) (2006)) and Sections 60.145(b)(1), 61.145(c)(1), 61.145(c)(3),

61.145(c)(6)(i), 61.145(c)(6)(ii), 61.145(c)(6)(iii), 61.145(c)(8), 61.150(a)(1), and 61.150(b) of

the National Emissions Standards for Hazardous Air Pollutants (NESHAPs), for asbestos (40

C.F.R. §§ 60.145(b)(1), 61.145(c)(1), 61.145(c)(3), 61.145(c)(6)(i), 61.145(c)(6)(ii),

61.145(c)(6)(iii), 61.145(c)(8), 61.150(a)(1), and 61.150(b)).

On both counts, the People ask the Board to order Schultz to cease and desist from any

further violations of the Act and associated regulations, and pay a civil penalty of $50,000 for

The People further allege that Mr.

Schultz violated these provisions by not providing timely advance notification of renovation;

failing to properly wet, collect, and deposit “abestos-containing material” (RACM); improperly

disposing of RACM; and, by failing to have a person properly trained in NESHAP requirements

present during the renovation activities.

While the Board generally does not have jurisdiction over USEPA rules, Section 9(b) of the

Act provides that federal NESHAPs “are applicable to the state and enforceable under the Act.”

415 ILCS 5/9(b) (2006). Pursuant to Section 112(b)(1) of the Clean Air Act, 42 U.S.C.

7412(b)(1) (2007), the Administrator of the U.S. Environmental Protection Agency lists asbestos

as a hazardous air pollutant. Asbestos is a known human carcinogen for which there is no known

safe level of exposure.

each violation of the Act and pertinent Board regulations, and an additional $10,000 for each day

during which each violation continues thereafter.

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 Mr. Schultz fails 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 him 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) (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 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 proposal for 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 16, 2009, by a vote of 5-0.

___________________________________

John Therriault, Assistant Clerk

Illinois Pollution Control Board