ILLINOIS POLLUTION CONTROL BOARD

January 5, 2006

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

NATIONAL CITY ENVIRONMENTAL,

LLC, an Illinois limited liability corporation,

and NATIONAL CITY RECYCLING, LLC,

an Illinois limited liability corporation,

Respondents.

)

PCB 06-115

(Enforcement - Land, Water)

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

On December 27, 2005, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a five-count complaint against National City Environmental, LLC

and National City Recycling, LLC (respondents).

See

415 ILCS 5/31(c)(1) (2004); 35 Ill. Adm.

Code 103.204. The complaint concerns respondents’ automobile and white goods shredding,

recycling, and disposal facility at National City, St. Clair County. 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. In this case, the People allege that respondents violated Sections 12(a) and (d)

and 21(d)(1), (d)(2), (e), and (p)(1) of the Act (415 ILCS 5/12(a) and (d) and 21(d)(1), (d)(2), (e),

and (p)(1) (2004)); 35 Ill. Adm. Code 620.405, 620.410; and various conditions in two permits.

The People further allege that respondents violated these provisions by (1) conducting

waste disposal operations without an operating permit; (2) failing to submit an approved

application for a significant modification of a permit or a modified design; (3) failing to submit

an approved application for significant modification of a permit to address groundwater issues;

(4) failing to timely install groundwater monitoring wells; (5) failing to submit an approved

application for significant modification of a permit containing applicable groundwater quality

standards (AGQSs); (6) failing to submit an approved maximum allowable predicted

concentration (MAPC) list as a permit application; (7) failing to submit an approved application

for significant modification of a permit to begin an assessment monitoring program; (8) failing to

submit an approved assessment report; (9) failing to submit groundwater sampling data whether

Class I groundwater quality standards had been exceeded; (10) failing to submit a groundwater

assessment plan; (11) disposing of waste at a site that did not meet the requirements for the Act

and Board regulations; (12) conducting waste disposal operations in violation of Board

regulations or standards; (13) depositing contaminants on land in such a place and manner as to

cause violation of groundwater quality standards for boron, iron, manganese, sulfate, total

dissolved solids, and vinyl chloride; (14) depositing contaminants on land in such a place and

manner as to create a water pollution hazard; (15) causing, threatening, or allowing the release of

contaminants into the groundwater as to cause violation of groundwater quality standards for

boron, iron, manganese, sulfate, total dissolved solids, and vinyl chloride; (16) disposing ,

storing, or transporting waste that did not meet the requirements of the Act and Board

regulations; and (17) causing or allowing the open dumping of waste in a manner that resulted in

litter. The People ask the Board to order 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 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. 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 ongoing 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 January 5, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board