ILLINOIS POLLUTION CONTROL BOARD
    July 24, 2003
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    4832 S. VINCENNES, L.P., an Illinois limited
    partnership, and BATTEAST
    CONSTRUCTION COMPANY OF
    ILLINOIS, INC., an Illinois corporation,
     
    Respondents.
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    PCB 04-7
    (Enforcement - Air)
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    On July 14, 2003, the Office of the Attorney General, on behalf of the People of the State
    of Illinois (People), filed a two-count complaint against 4832 S. Vincennes, L.P. (Vincennes) and
    Batteast Construction Company of Illinois, Inc. (Batteast Construction).
    See
    415 ILCS 5/31
    (2002). According to the complaint, Vincennes and Batteast Construction violated asbestos
    requirements while renovating Vincennes’ four-story, 67-unit, residential apartment building at
    4832 S. Vincennes Ave., Chicago, Cook County. For the reasons below, the Board accepts the
    complaint for hearing.
     
    In count I of the complaint, the People allege that Vincennes, as the property owner, and
    Batteast Construction, as the renovation manager, caused or tended to cause air pollution in
    violation of the Environmental Protection Act (Act) (415 ILCS 5/9(a) (2002)) and Board
    regulation (35 Ill. Adm. Code 201.141) by causing, threatening, or allowing fibers of dry, friable
    asbestos to be released into the air and exposed to the environment during the renovation. In
    count II, the People allege that Vincennes and Batteast Construction violated the National
    Emission Standards for Hazardous Air Pollutants (NESHAPS) under the federal Clean Air Act
    (42 U.S.C. § 7412; 40 C.F.R. § 61.145) and thus violated the Act (415 ILCS 5/9.1(d)(1) (2002))
    by failing to thoroughly inspect the building for asbestos, by failing to remove all regulated
    asbestos-containing material (RACM) before disturbing or precluding access to the material, and
    by failing to adequately wet all RACM before disposal. The People ask the Board to order
    Vincennes and Batteast Construction (1) to cease and desist from further violations; (2) to each
    pay a civil penalty of $50,000 for each violation and an additional civil penalty of $10,000 per
    day for each day a violation continued; and (3) to pay the People’s costs and attorney fees
    incurred in this enforcement action. The Board finds that complaint meets the content
    requirements of the Board’s procedural rules.
    See
    35 Ill. Adm. Code 103.204(c), (f).
     
    The Board accepts the complaint for hearing.
    See
    35 Ill. Adm. Code 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 a respondent fails within that timeframe to file an
     
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    answer specifically denying, or asserting insufficient knowledge to form a belief of, a material
    allegation in the complaint, the Board will consider the respondent 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
    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 July 24, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     
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