ILLINOIS POLLUTION CONTROL BOARD
    August 17, 2006
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    J&S COMPANIES, INC., a Missouri
    corporation, and FIRST CHOICE
    CONSTRUCTION, INC., an Illinois
    corporation,
    Respondents.
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    PCB 06-33
    (Enforcement - Land)
    DISSENTING OPINION (by T.E. Johnson):
    I respectfully dissent with the majority opinion. Not only am I unsure as to whether we
    have arrived at today’s order in a procedurally correct fashion
    1
    , I specifically disagree with the
    majority’s imposition of a $25,000 civil penalty on J&S Companies, Inc. (J&S). A review of the
    record reveals that J&S demolished the site in question, but did not actually dump the waste.
    Rather, First Choice Construction, Inc. (First Choice) was hired to bring waste from the
    demolition site to the disposal site.
    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; whether any economic benefit was accrued by the respondent from
    delaying compliance; the need to deter further violations by the respondent and others similarly
    situated; whether the respondent voluntarily self-disclosed the violation; and whether the
    respondent has agreed to undertake a supplemental environmental project (415 ILCS 5/42(h)
    (2004)). 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.”
    Id.
    The listed 42(h) factors clearly weigh in favor of mitigation in this instance. While the
    violations in this matter occurred over a period of time, J&S did not actually perform the open
    dumping. Further, the record does not contain, nor do the People allege any actual harm to the
    1
    Please note that I also filed a dissent in this case on June 16, 2006. In that dissent I disagreed with the
    majority’s finding that First Choice admitted the facts contained in the complaint without the benefit of either a
    motion to deem facts admitted or a motion for summary judgment. I stated that the majority’s
    sua sponte
    decision to
    find that First Choice admitted the allegations in the complaint was neither necessary nor appropriate at that time.
    See
    People v. J&S Companies, Inc., PCB 06-33 (Jun. 16, 2006). Nothing in the interim has caused me to vary my
    opinion of June 16, 2006.
    2
    environment.
    See
    415 ILCS 5/42(h)(1) (2004). The People do not state how responsive J&S
    was or how long it took J&S to come into compliance, but the record does show that J&S
    cleaned up the site.
    See
    415 ILCS 5/42(h)(2) (2004). The record does not contain any evidence
    of an economic benefit, and J&S has no previously adjudicated violations.
    See
    415 ILCS
    5/42(h)(3), (4) and (5)(2004).
    I think it important that J&S did not actually perform any dumping. Although it is true
    that J&S hired First Choice to haul the construction or demolition debris from the demolition
    site, it is also true that J&S was diligent in cleaning up the site and that any environmental-based
    risk has ended.
    The People ask for a civil penalty of $25,000. In light of the fact that J&S cleaned up the
    site, did not have any measurable economic benefit, and had no previously adjudicated
    violations, a consideration of the 42(h) factors clearly mandates mitigation of any penalty
    imposed. Accordingly, I feel that a civil penalty of $25,000 is excessive.
    For the above stated reasons, I respectfully dissent
    Thomas E. Johnson
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the above
    dissenting opinion was submitted on August 17, 2006.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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