ILLINOIS POLLUTION CONTROL BOARD
January 6, 2005
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ENVIRONMENTAL HEALTH AND
SAFETY, INC., an Illinois corporation,
Respondent.
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PCB 05-51
(Enforcement - Air)
ORDER OF THE BOARD (by T.E. Johnson):
On September 13, 2004, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a complaint against Randy Oldenberger d/b/a Environmental
Health and Safety (Oldenberger). The Board accepted this complaint on September 16, 2004.
On October 18, 2004, Oldenberger filed a motion to dismiss, asserting that Environmental Health
and Safety Services, Inc. (EHSS), an Illinois corporation, performed all the work referenced in
the complaint. On November 22, 2004, the People filed a response to the motion acknowledging
that EHSS is a corporation in good standing and indicating that it would drop Oldenberger from
the complaint and file an amended complaint against the corporation.
On December 6, 2004, the People filed an amended complaint against EHSS.
See
415
ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The amended complaint does not allege
any violations against Oldenberger, but is otherwise substantially identical to the initial
complaint. The amended complaint alleges that EHSS, an asbestos removal contractor located at
1304 Derby Lane, Rockford, Winnebago County, conducted asbestos removal activities in
violation of the Environmental Protection Act (Act) (415 ILCS 5/1
et seq
. (2002)), and both state
and federal regulations. The amended complaint alleges that these violations occurred at the
Lincoln Park School, 4103 West State Street, Rockford, Winnebago County. For the reasons
below, the Board accepts the amended complaint for hearing. Accordingly, the Board finds
Oldenberger’s motion to dismiss moot.
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 EHSS violated Sections 9(a) and 9.1(d)(1) of
the Act (415 ILCS 5/9(a) and 9.1(d)(1) (2002)); 35 Ill. Adm. Code 201.141; and 40 C.F.R.
61.145(b)(1), (b)(3)(iv), (b)(4)(vi), (c)(3), and (c)(6)(i) and 61.150(a)(1) and (b) by (1) causing,
threatening, or allowing the emission of asbestos so as to cause or tend to cause air pollution; (2)
failing to provide a complete National Emission Standards for Hazardous Air Pollutants
(NESHAPS) notification for asbestos removal activities; (3) failing to provide a timely
NESHAPS notification of rescheduling of asbestos removal activities; (4) failing to adequately
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wet all regulated asbestos-containing material (RACM) before stripping from structures; (5)
failing to adequately wet all RACM until collection; (6) failing to adequately wet and keep wet
all RACM; and (7) failing to deposit all RACM at a permitted site. The People ask the Board to
order EHSS 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 EHSS 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 EHSS 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) (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.
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
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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 6, 2005, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
