ILLINOIS POLLUTION CONTROL BOARD
August 21, 1997
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ESS L.P., INC., an Illinois limited
partnership,
Respondent.
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PCB 97-177
(EPCRA - Enforcement)
OPINION AND ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on a July 16, 1997 motion for summary judgment filed
by the Illinois Attorney General, on behalf of the People of the State of Illinois (People). The
People filed the complaint on April 7, 1997, alleging a violation of Section 25b-2(a) (failure to
submit a toxic chemical release form) of the Illinois Environmental Protection Act (Act) (415
ILCS 5/25b-2(a) (1996)). ESS L.P. failed to answer the complaint or motion for summary
judgment. In the motion for summary judgment, the People request that the Board assess a
$60,200 civil penalty against ESS L.P.
For the reasons stated below, the Board finds that there are no genuine issues of
material fact remaining and that the People are entitled to judgment under the law. Therefore,
the People’s motion for summary judgment will be granted.
PROCEDURAL HISTORY
The People filed this enforcement complaint on April 7, 1997. Pursuant to Section
103.122(d) of the Board’s procedural rules, ESS L.P. could have filed a response within 30
days of receipt of the complaint. No answer was filed, and accordingly all material allegations
of the complaint shall be taken as denied. 35 Ill. Adm. Code 103.122(d).
The instant motion for summary judgment was filed on July 16, 1997. Pursuant to
Section 103.140(c) of the Board’s procedural rules, ESS L.P. was allowed a response time of
seven days after service of the motion. ESS L.P. did not file a response to the People’s
motion, and therefore it is deemed to have waived objection to the granting of the motion. 35
Ill. Adm. Code 103.140(c). However, such waiver of objection does not bind the Board in the
decision of the motion.
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ALLEGED VIOLATION
The People allege that ESS L.P. violated Section 25b-2(a) of the Act. Section 25b-2(a)
of the Act provides:
a. Facilities which are required to file toxic chemical release
forms with the State pursuant to Section 313 of the federal
Emergency Planning and Community Right-to-Know Act of
1986 shall file such forms with the Illinois Environmental
Protection Agency. 415 ILCS 5/25b-2(a).
Section 313 of the federal Emergency Planning and Community Right-to-Know Act
(EPCRA) of 1986 states:
(a) Basic requirement
The owner or operator of a facility subject to the requirements of
this section shall complete a toxic chemical release form as
published under subsection (g) of this section for each toxic
chemical listed under subsection (c) of this section that was
manufactured, processed, or otherwise used in quantities
exceeding the toxic chemical threshold quantity established by
subsection (f) of this section during the preceding calendar year at
such facility. Such form shall be submitted to the Administrator
and to an official or officials of the State designated by the
Governor on or before July 1, 1988, and annually thereafter on
July 1 and shall contain data reflecting releases during the
preceding calendar year. 42 U.S.C.A. §11023(a) (1986).
BACKGROUND
ESS L.P. owned or operated a facility at 475 Industrial Drive, West Chicago, DuPage
County, Illinois (site) where it manufactured printed circuit boards in 1994. Hydrochloric
acid, ammonia, nitric acid, formaldehyde, copper, xylene (mixed isomers) and
dichloromethane were used at the site in 1994.
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For purposes of EPCRA, each chemical
requires a separate toxic chemical release form (Form R). The People allege that ESS L.P.
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Hydrochloric acid, ammonia, nitric acid, formaldehyde, copper were used at the site in 1993.
ESS L.P. filed Forms R for these chemicals (as well as for sulfuric acid and glycol ethers) to
the Agency for the 1993 year on August 31, 1994.
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failed to timely file its 1994 Forms R to the Illinois Environment Protection Agency (Agency)
for these chemicals by the July 1, 1995 deadline.
Pursuant to Section 25b-6 of the Act, on September 1, 1995 the Agency sent ESS L.P.
a warning notice by certified mail, stating that it had failed to submit its Forms R for 1994.
The Agency states that ESS L.P. did not file the Forms R within 30 days, or within 30 days of
September 5, 1995, by October 5, 1995, but did file them on January 2, 1996.
The People have calculated daily penalties beginning on October 6, 1995 and
continuing until December 31, 1995, a period of 87 days.
ANALYSIS
Summary judgment is appropriate when the pleadings, depositions and admissions of
fact, together with any affidavits, show there is no genuine issue of material fact to be
considered by the trier of fact and the movant is entitled to judgment under the law. Purtill v.
Hess, 111 Ill. 2d 229, 240-241, 489 N.E.2d 867, 871-872 (1986); Waste Management of
Illinois, Inc. v. IEPA (July 21, 1994) PCB 94-153; ESG Watts v. IEPA (August 13, 1992),
PCB 92-54; Sherex Chemical v. IEPA (July 30, 1992), PCB 91-202; People v. ESG Watts
(March 6, 1997), PCB 96-233.
Attached to the People’s motion for summary judgment is an affidavit signed by Ms.
Carlita Crockett of the Agency, attesting to all factual allegations of the complaint. ESS L.P.
did not file its 1994 Forms R by July 1, 1995. The Agency sent the Section 25b-6 warning
notice on September 1, 1995 and states that ESS L.P. received it on September 5, 1997.
Section 25b-6 of the Act states:
Prior to taking action pursuant to Title VIII for a violation of
Section 25b-2 of this Act, the Agency shall issue, no earlier than
August 1 of each year by certified mail or personal service upon
the person complained against, a notice that the Agency has
failed to receive from that person all required toxic chemical
release forms and provide a period of 30 days to submit the
forms to the Agency. In the event that person fails to file the
forms with the Agency within the 30 day period, the Agency may
proceed with enforcement pursuant to Title VIII of this Act.
ESS L.P. did not file its 1994 Forms R within the 30-day period after receiving the warning
notice, or by October 5, 1995, but rather filed its 1994 Forms R on January 2, 1996. In
accordance with Section 25b-6 of the Act, the Agency proceeded with enforcement.
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Without exception, ESS L.P. has failed to respond to any filings in this matter.
Therefore, as stated above, ESS L.P. has waived objection to the motion for summary
judgment.
We find that the uncontested facts demonstrate that ESS L.P. violated Section 25b-2(a)
of the Act by failing to timely file its Forms R for hydrochloric acid, ammonia, nitric acid,
formaldehyde, copper, xylene (mixed isomers), and dichloromethane used at the site in 1994.
Although there was no physical injury to the people or environment, this is not a minor
violation. The Agency cannot protect against environmental damage when it does not know
what types and quantities of chemicals are being utilized by the facilities in the State. The
reporting requirement of EPCRA are thwarted when facilities do not file toxic chemical release
forms and the people of the State cannot access information on facilities using toxic chemicals.
REMEDY
Having found that ESS L.P. violated the Act, the Board must determine what
constitutes a proper remedy. The Act authorizes the Board to assess civil penalties for
violations of the Act regardless of whether those violations resulted in actual pollution. ESG
Watts, Inc. v. IPCB, 218 Ill.Dec. 183, 282 Ill.App.3d 43, 668 N.E.2d 1015.
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The Board
believes that violation of Section 25b-2 of the Act requires the imposition of the statutory civil
penalty and would aid in the enforcement of the Act. The Board’s authority to issue a civil
penalty is governed by Section 42 of the Act. In accordance with Section 42(b.5):
In lieu of the penalties set forth in subsection (a) and (b) of this
Section, any person who fails to file, in a timely manner, a toxic
chemical release form with the Agency pursuant to Section 25b-2
of this Act shall be liable for a civil penalty of $100 per day for
each day the form is late. This daily penalty shall begin accruing
on the thirty-first day after the date that the person receives the
warning notice issued by the Agency pursuant to Section 25b-6 of
this Act; and the penalty shall be paid to the Agency. The daily
accrual of penalties shall cease as of January 1, of the following
year. All penalties collected by the Agency pursuant to this
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The Appellate Court found it was not excessive for the Board to assess a $60,000 penalty for
failing to timely pay solid waste fees or to timely submit various required reports, even though
the violations caused no environmental harm and the operator was currently in compliance.
The Court also found that it was reasonable to assume the operator received timely value of
money by delaying necessary expenditures, even though evidence to support any economic
benefit gained was slight to nonexistent.
ESG Watts, Inc. v. IPCB, 218 Ill.Dec. 183, 282
Ill.App.3d 43, 668 N.E.2d 1015.
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subsection shall be deposited into the Environmental Protection
Permit and Inspection Fund.
Complainant seeks a civil penalty of $8,600 against ESS L.P. for each of the seven
chemical Forms R, for a total of $60,200. The penalty was calculated beginning on October
6, 1995, thirty-one days after receiving the Agency warning letter, until December 31, 1995.
A violation of Section 25b-2 is analogous to an administrative citation violation. When
a penalty is imposed in an administration citation, Section 42(b)(4) states that the violator
“shall pay a civil penalty of $500 for each violation,” the Board does not have discretion to
reduce or increase that penalty amount. Similarly, Section 42(b.5) requires that when a
violation of Section 25b-2 is found, the violator “shall be liable for a civil penalty of $100 per
day for each day the form is late.” Again, the Board does not have discretion to alter that
statuary penalty amount. Because there exists an exact statutory penalty for a violation of
Section 25b-2, the Board does not consider the Section 33(c) or 42(h) factors in its penalty
analysis. The Board hereby finds that a civil penalty of $8,600 against ESS L.P. for each
chemical Form R, for a total of $60,200, is required pursuant to statute.
Although the Board may be required in some types of enforcement actions to assess the
five mitigation factors listed in Section 42(h) of the Act, the Board cannot use those factors to
mitigate a Section 25b-2 violation. The Board is authorized to consider any matters of record
in mitigation or aggravation of penalty when determining the appropriate civil penalty to be
imposed under subdivisions (a), (b)(1), (b)(2), (b)(3), or (b)(5) of Section 42 (415 ILCS
5/42(h)). However, there is no authority for the Board to consider 42(h) factors when
determining a 42(b.5) penalty amount.
The Board will therefore impose the statutory $100 per day civil penalty for each Form
R not timely submitted, for a total of $60,200.
ORDER
1. The Board hereby grants summary judgment in favor of People of the State of Illinois
against respondent ESS L.P., an Illinois Limited Partnership (ESS L.P.).
2. The Board finds that ESS L.P. violated Section 25b-2 of the Illinois Environmental
Protection Act.
3. ESS L.P. shall pay a civil penalty in the sum of sixty thousand two hundred dollars
($60,200) within 90 days of this order payable to the Treasurer of the State of Illinois
and designated to the Environmental Protection Permit and Inspection Fund.
Such payment shall be made by certified check or money order payable to the
Treasurer of the State of Illinois, designated to the Environmental Protection Permit
and Inspection Fund and shall be sent by first class mail to:
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Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
Springfield, IL 62702
Any such penalty not paid within the time prescribed shall incur interest at the rate set
forth in subsection (a) of Section 1003 of the Illinois Income Tax Act, (35 ILCS
5/1003), as now or hereafter amended, from the date payment is due until the date
payment is received. Interest shall not accrue during the pendency of an appeal
during which payment of the penalty has been stayed.
IT IS SO ORDERED.
Board Member M. McFawn concurred.
Section 41 of the Environmental Protection Act (415 ILCS 5/41 (1996)) provides for
the appeal of final Board orders to the Illinois Appellate Court within 35 days of service of this
order. Illinois Supreme Court Rule 335 establishes such filing requirements. See 145 Ill. 2d
R. 335; see also 35 Ill. Adm. Code 101.246, Motions for Reconsideration.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above opinion and order was adopted on the 21st day of August 1997, by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
