ILLINOIS POLLUTION CONTROL BOARD
    January 22, 2004
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    PETER BABANIOTIS, an individual,
    Respondent.
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    PCB 04-107
    (Enforcement – Land, Water)
    ORDER OF THE BOARD (by A.S. Moore):
    On December 29, 2003, the Office of the Attorney General, on behalf of the People of the
    State of Illinois (People), filed a complaint against Peter Babaniotis (Babaniotis). The complaint
    concerns alleged contamination from leaking underground storage tanks (USTs) at Babaniotis’
    former gasoline station, which is located at 101 E. Jefferson Street, in Shorewood, Will County.
    For the reasons below, the Board accepts the complaint for hearing.
    Under the Environmental Protection Act (Act) (415 ILCS 5/1
    et seq
    . (2002)), 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 (2002); 35 Ill.
    Adm. Code 103. In this case, the People allege that Babaniotis violated Sections 12(a) and (d) of
    the Act (415 ILCS 5/12(a), (d) (2002)) by causing or allowing soil and groundwater to become
    contaminated with gasoline released from the USTs and in turn not addressing the
    contamination, resulting in water pollution and a continuing water pollution hazard. The People
    also allege that Babaniotis violated the Board’s regulations (35 Ill. Adm. Code 731.164-731.166)
    by failing to properly respond to the leaking USTs. The People ask the Board to order
    Babaniotis to do the following: cease and desist from further violations; define the extent of
    contamination; remediate contaminated soil and groundwater; submit required reports and plans
    to the Illinois Environmental Protection Agency; pay civil penalties; and pay the People’s
    attorney fees and costs expended in pursuing this action.
    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 Babaniotis 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 Babaniotis 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
    2
    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) (2002). 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.
    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 dollar amount), and
    supporting its position with facts and arguments that address any or all of the Section 42(h)
    factors.
    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 22, 2004, by a vote of 5-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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