ILLINOIS POLLUTION CONTROL BOARD
April 1, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ESG WATTS, INC. (Taylor Ridge),
Respondent.
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PCB 01-167
(Enforcement - Land)
THOMAS DAVIS ASSISTANT ATTORNEY GENERAL APPEARED ON BEHALF OF
COMPLAINANT; and
LARRY A. WOODWARD, CORPORATE COUNSEL, APPEARED ON BEHALF OF
RESPONDENT.
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
On June 12, 2001, the People of the State of Illinois (complainant) filed a three count
complaint against ESG Watts, Inc. (Watts) for alleged violations of the Environmental Protection
Act (Act) (415 ILCS 5/1
et seq.
(2002)) and Board regulations at Watts’ Taylor Ridge facility
located in Rock Island County. On August 14, 2002, an amended five-count complaint was
filed.
Based on the record in this proceeding, in its January 8, 2004 interim opinion and order
the Board found Watts in violation as alleged in the amended complaint. People v. ESG Watts,
Inc. PCB 01-167 (Jan. 8, 2004). The Board will not repeat its interim findings in their entirety,
incorporating that interim opinion and order by reference here as if fully set forth. But, in
summary, the Board fined Watts $1,000,000 for the following violations:
Count I: Watts violated Section 21(d) of the Act (415 ILCS 5/21(d) (2002)) by
failing to initiate and complete closure of the Taylor Ridge facility. Am. Comp.
at 4; ESG Watts,
slip op
. at 8.
Count II: Watts violated Sections 9(a) and 21(d) of the Act (415 ILCS 5/9(a) and
21(d) (2002)) by failing to implement a gas management plan and causing,
threatening or allowing the emission of gas to cause air pollution. Am. Comp. at
7; ESG Watts,
slip op
. at 9-10.
Count III: Watts violated Sections 12(a) and 21(d) of the Act (415 ILCS 5/12(a)
and 21(d) (2002)) by causing, threatening, or allowing discharge of any
contaminant so as to cause or tend to cause water pollution, and failing to
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implement a stormwater control plan. Am. Comp. at 9; ESG Watts,
slip op
. at 9-
10.
Count IV: Watts violated Section 21(d) of the Act (415 ILCS 5/21(d) (2002)) by
depositing waste over the maximum permitted height limit and the waste remains
in the overfill areas of the landfill. Am. Comp. at 10; ESG Watts,
slip op
. at 13.
Count V: Watts violated Sections 21(d)(1) and (o)(11) of the Act (415 ILCS
5/21(d)(1) and (o)(11) (2002)) by failing to submit quarterly groundwater
monitoring reports. Am. Comp. at 12; ESG Watts,
slip op
. at 13.
In response to a request by the People, the Board also found in its January 8, 2004 interim
opinion and order that an award of attorney fees would be appropriate in this case under Section
42(f) of the Act. Section 42(f) allows the Board to:
award costs and reasonable attorney’s fees, including the reasonable costs of
expert witnesses and consultants, to . . . the Attorney General in a case where he
has prevailed against a person who has committed a willful, know or repeated
violation of the Act. 415 ILCS 5/42(f) (2002).
As directed in the interim order, the Attorney General filed an affidavit requesting
attorney fees and expert witness costs on February 13, 2004. As Watts filed no reply, under
Section 101.500(d) of the Board’s procedural rules, the Board deems Watts to have waived
objection to the granting of the motion. 35 Ill. Adm. Code 101.500(d).
The People’s affidavit requests a total of $7,200 in attorney fees and witness costs. The
People request an award of fees for 30 hours of attorney activity and 22 hours of expert witness
activity, at rates of $150 and $120, respectively. As to attorney fees, the People note that
previous cases had found that $120 per hour was a reasonable rate.
See
People v. ESG Watts,
Inc., PCB 96-107 (February 5, 1998), People v. ESG Watts, Inc., PCB 94-127 (May 4, 1995),
and People v. Waste Hauling Landfill, PCB 95-91 (May 21, 1998). But here, the People
“respectfully suggest that the Board ought to increase the rate from $120 per hour to $150 per
hour” for attorney time, while suggesting that the $120 rate may be adequate for the expert
witness, Gary Styzens, Chief Internal Auditor of the Illinois Environmental Protection Agency.
Affidavit at 1.
The Board finds that the number of hours claimed and the rates suggested are reasonable
in this case. The Board awards $2,640 for 22 hours of expert witness activity at a $120 hourly
rate. The Board also awards $4,500 for 30 hours of attorney activity at a rate of $150 per hour.
The Board accordingly awards a total of $7,140, payable to the Hazardous Waste Fund as
requested by the People under Section 42(f).
This final opinion constitutes the Board's final findings of fact and conclusions of law.
ORDER
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1. The Board finds that ESG Watts, Inc (ESG Watts), has violated the Act and Board
regulations at Watts’ Taylor Ridge facility, located in Rock Island County, as
alleged in the August 14, 2002 amended complaint filed by the People of the State
of Illinois. The Board’s findings are stated in detail in its January 8, 2004 interim
opinion and order, incorporated by reference herein as if fully set forth.
2. The Board hereby orders payment of the one million dollars ($1,000,000) civil
penalty previously assessed against ESG Watts. ESG Watts must pay this penalty
no later than May 6, 2004, which is the 35th day after the date of this order. ESG
Watts must pay the civil penalty by certified check or money order, payable to the
Environmental Protection Trust Fund. The case number, case name, and the ESG
Watts’ federal employer identification numbers must be included on the certified
check or money order.
3. The ESG Watts must send the certified check or money order to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
4. Penalties unpaid within the time prescribed will accrue interest under Section
42(g) of the Environmental Protection Act (415 ILCS 5/42(g) (2002)) at the rate
set forth in Section 1003(a) of the Illinois Income Tax Act (35 ILCS 5/1003(a)
(2002)).
5. The Board awards the People of the State of Illinois $7,140 in attorney fees and
expert witness costs. ESG Watts must pay these costs no later than May 6, 2004,
which is the 35th day after the date of this order. ESG Watts must pay the costs
by certified check or money order, payable to the Hazardous Waste Fund. The
case number, case name, and the ESG Watts’ federal employer identification
numbers must be included on the certified check or money order. The certified
check or money order must be sent to the address in paragraph 3.
6. ESG Watts must cease and desist from the alleged violations.
IT IS SO ORDERED.
Board Member T.E. Johnson concurred.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2002);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
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Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on April 1, 2004, by a vote of 4-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
