ILLINOIS POLLUTION CONTROL BOARD

BACKGROUND
DISCUSSION
1. _
  1. _
    1. Liability for Punitive Damages
    2. ORDER

September 20, 2001

PEOPLE OF THE STATE OF ILLINOIS,

(Enforcement – Cost Recovery)

ELIZABETH WALLACE, ASSISTANT ATTORNEY GENERAL, OFFICE OF THE

ATTORNEY GENERAL, APPEARED ON BEHALF OF COMPLAINANT.

OPINION AND ORDER OF THE BOARD (by C.A. Manning):

Kenneth Morrison (Morrison) owned a site in Streator, Livingston County, Illinois at

which approximately 1,100 used or waste tires were stored or disposed. On May 31, 2000, the

Illinois Attorney General, on behalf of the People of the State of Illinois (People) and at the

request of the Illinois Environmental Protection Agency (Agency), filed a complaint against

Morrison. The complaint sought reimbursement of the Agency’s costs to remove the tires from

Morrison’s property plus punitive damages pursuant to Section 55.3 of the Environmental

Protection Act (Act) (415 ILCS 5/55.3 (2000)). Morrison did not answer the complaint.

On December 4, 2000, the People filed a motion for summary judgment against

Morrison, requesting $30,902.52 for the Agency’s corrective action plus $61,805.04 in punitive

damages. In an interim opinion and order issued on January 18, 2001, the Board granted the

People’s motion for summary judgment in part, awarding $30,902.52 for the Agency’s costs

incurred in removing the tires. However, the Board denied the People’s motion for summary

judgment on punitive damages, and directed that a hearing be held on that issue. The Board held

a hearing on June 27, 2001, and the People filed a post-hearing brief on August 6, 2001.

Morrison did not attend the hearing or file a post-hearing brief. For the reasons provided below,

the Board requires Morrison to pay $61,805.04 in punitive damages.

BACKGROUND

Morrison owned a parcel of land located on Coalville Road, Streator, Livingston County,

Illinois (site). Comp. at 1-2.

A portion of the site was sold for taxes in September 1998, and the

remainder was sold for taxes in October 1999.

Id.

at 2. On March 18, 1998, an Agency

inspection of the site found approximately 1,100 used or waste tires.

Id.

Pursuant to Section

55.3(d) of the Act (415 ILCS 5/55.3(d) (2000)), the Agency issued a formal written notice on

August 11, 1998, directing Morrison to remove the tires from the site by

References to the complaint are cited as “Comp. at ___.”

October 1, 1998. Comp. at 1-2; Exh. 2 at 2.

Since Morrison did not respond, the Agency

notified Morrison on October 26, 1998, that it would perform a corrective action by removing

the tires from the site.

Id.

, Exh. 3 at 1. Between December 16 and December 23, 1998, the

Agency removed 101.97 tons of used or waste tires from the site, incurring costs in the amount

of $30,902.52.

Id.

at 2-3. The Agency sent a letter to Morrison on February 4, 1999,

demanding reimbursement, to which Morrison did not respond.

Id.

at 3.

In its January 18, 2001 interim opinion and order, the Board granted the People’s motion

for summary judgment for reimbursement of the Agency’s clean-up costs pursuant to Section

55.3(k) of the Act (415 ILCS 5/55.3(k) (2000)). On the issue of punitive damages, the Board

directed the matter to hearing because a genuine issue of material fact remained as to whether

Morrison had sufficient cause to fail to take the clean-up action as required under Section 55.3(d)

of the Act.

The Board held a hearing on punitive damages on June 27, 2001 before Hearing Officer

Steven Langhoff. Todd Marvel (Marvel), Manager of the Agency’s Used Tire Unit, and

Kenneth Keigley (Keigley), Agency field inspector, testified on behalf of the People. Morrison

did not attend the hearing, nor did he file a post-hearing brief. The People filed a post-hearing

brief on August 6, 2001.

DISCUSSION

The issue before the Board today is whether Morrison should pay punitive damages in

the amount of $61,805.04, as the People request. The Board first examines Morrison’s liability

for punitive damages pursuant to Section 55.3(h) of the Act (415 ILCS 5/55.3(h) (2000)). The

Board then addresses whether to impose punitive damages, and if so, in what amount.

Liability for Punitive Damages

The People ask the Board to assess punitive damages against Morrison in the amount of

$61,805.04 pursuant to Section 55.3(h) of the Act. Section 55.3(h) provides that:

Any person liable to the Agency for costs incurred under subsection (g) of this

Section may be liable to the State of Illinois for punitive damages in an amount at

least equal to, and not more than 2 times, the costs incurred by the State if such

person failed without sufficient cause to take preventive or corrective action

pursuant to notice issued under subsection (d) of this Section. 415 ILCS

5/55.3(h) (2000).

The People must prove three factors under Section 55.3(h) of the Act. First, the People

must show that Morrison failed to take preventive or corrective action pursuant to notice issued

by the Agency under Section 55.3(d) of the Act. Second, the People must show that Morrison is

liable for costs incurred by the Agency under Section 55.3(g) of the Act (415 ILCS 5/55.3(g)

References to the People’s exhibits are cited as “Exh. ___ at ___.”

(2000)). Third, the People must show that Morrison lacked sufficient cause for his failure to take

corrective action.

See

People v. Rogers, PCB 00-127, slip op. at 3 (Aug. 9, 2001).

With respect to the first two factors, the Board has already found that Morrison failed to

take corrective action in response to the Agency’s notice, thereby requiring the Agency to pay

for the tire removal in the amount of $30,902.52. People v. Morrison, PCB 00-212, slip op. at 3

(Jan. 18, 2001). The January 18, 2001 interim opinion and order found Morrison liable for costs

incurred by the Agency for corrective action pursuant to Section 55.3(g) of the Act.

Id.

The third factor, which is at issue today, is whether Morrison failed to take corrective

action without sufficient cause. On August 11, 1998, the Agency sent Morrison a notice

pursuant to Section 55.3(d) of the Act directing Morrison to remove and properly dispose of the

used or waste tires at the site by October 1, 1998. Exh. 2 at 2. The notice included the language

concerning punitive damages under Section 55.3(h) of the Act.

Id.

at 4. On

October 26, 1998, the Agency sent Morrison a letter stating that Morrison had not responded to

the Agency, and without further notice, the Agency would remove the tires. Exh. 3 at 1. This

letter also advised Morrison of the Agency’s right to request punitive damages pursuant to

Section 55.3(h) of the Act.

Id.

On December 8, 1998, Morrison initiated a telephone

conversation with Keigley during which Morrison asked if he could remove the tires before the

Agency conducted its removal. Tr. at 32.

Keigley responded that Morrison could haul the tires,

and Keigley sent him an application to be a used tire transporter.

Id.

The Agency sent a letter to

Morrison on December 10, 1998, memorializing the conversation.

Id.

; Exh. 5 at 1. Marvel and

Keigley both testified that Morrison took no further action to remove the tires. Tr. at 25, 33.

The Board finds that Morrison failed to take corrective action without sufficient cause.

Morrison was notified of potential punitive damages. He had opportunity, but failed to take

corrective action, nor did he offer any reason for failing to comply with Section 55.3 of the Act.

Accordingly, the Board has discretion to impose punitive damages against Morrison pursuant to

Section 55.3(h) of the Act. The Board will now address whether to impose punitive damages

against Morrison, and if so, in what amount.

Imposition of Punitive Damages

In Rogers, the Board stated the following purpose of punitive damages:

The Board finds that the complete failure to abide by Section 55.3 of the

Act, pay for corrective action, and participate in any way in the proceedings

before the Board is the type of conduct that punitive damages are designed to

punish and prevent. “The purpose in awarding punitive damages is to punish an

individual responsible for the wrongful conduct, to teach the individual not to

repeat the wrongful conduct, and to deter others from similar conduct.” Rogers,

PCB 00-127, slip op. at 5,

quoting

Page v. City of Chicago, 299 Ill. App. 3d 450,

463, 701 N.E.2d 218, 227 (1st Dist. 1998).

References to the transcript are cited as “Tr. at ___.”

By this standard, punitive damages are appropriate because Morrison failed to take

financial responsibility for corrective action, nor did he participate in Board proceedings to show

cause for his failure to remove the tires. Punitive damages will punish Morrison for his lack of

cooperation, and deter others from the same conduct.

See

Rogers, PCB 00-127, slip op. at 5. If

the Board does not assess punitive damages against Morrison, future violators may be

encouraged to ignore the Agency’s notices, require the Agency to incur cleanup costs, and defer

reimbursing costs until the Agency expends additional time and resources in litigating the case.

See id.

Without a penalty, Morrison would pay the same costs for refusing to clean the site as he

would pay if he cooperated with the Agency and assumed that responsibility.

See

id.

Finding

punitive damages appropriate in this case, the Board will next determine the amount of those

damages.

Pursuant to Section 55.3(h) of the Act, the Board may impose punitive damages ranging

from the amount of the Agency’s actual cost of corrective action up to twice that amount. In this

case, the applicable penalty range is $30,902.52 to $61,805.04. The People argue for the

maximum punitive damage award because Morrison, other than one telephone call, ignored the

Agency’s warnings, failed to take any corrective action, and did not participate in these

proceedings. Comp. Br. at 5.

The maximum punitive damage amount is appropriate for violators who are unresponsive

and uncooperative with the Agency. Morrison’s single telephone call to the Agency on

December 8, 1998, does not constitute a cooperative response, as Morrison did not follow up

with any action despite encouragement from the Agency. Morrison did not respond to the

complaint, contest the People’s motion for summary judgment, appear at hearing, or file a post-

hearing brief. Morrison has not presented any evidence to show cause for his failure to take

corrective action, nor has he asserted any argument to offset the maximum punitive damage

award allowed pursuant to Section 55.3(h). Accordingly, the Board finds that Morrison is liable

for the maximum amount of punitive damages, $61,805.04.

CONCLUSION

The Board finds that Morrison is liable for punitive damages, and awards the People

$61,805.04 in punitive damages pursuant to Section 55.3(h) of the Act. This amount constitutes

twice the amount of the Agency’s actual costs for removing accumulated waste and used tires

from the site.

The Board incorporates by reference its January 18, 2001 interim opinion and order.

This final opinion and order constitutes the Board’s findings of fact and conclusions of law.

ORDER

1. The Board grants the motion for summary judgment filed by the People of the

State of Illinois (People) for the cost of corrective action. Respondent Kenneth

References to the People’s post-hearing brief are cited as “Comp. Br. at ___.”

Morrison (Morrison) must reimburse the Illinois Environmental Protection

Agency in the amount of $30,902.52 for costs incurred in the clean up of

accumulated used and waste tires at the site located at or near Coalville Road,

Streator, Livingston County, Illinois.

The Board finds that Morrison is liable to the People for punitive damages

pursuant to Section 55.3(h) of the Act (415 ILCS 5/55.3 (2000)). Morrison must

pay $61,804.04 in punitive damages to the Used Tire Management Fund

Morrison must pay the costs and damages under paragraphs one and two of this

order no later than October 20, 2001, which is the 30th day after the date of this

order. Morrison must pay the costs and damages by certified check or money

order, payable to the Used Tire Management Fund, in accordance with Section

55.6(a) of the Act (415 ILCS 5/55.6(a) (2000)). The case number, case name, and

Morrison’s social security number or federal employer number must also be

included on the certified check or money order.

Morrison 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

IT IS SO ORDERED.

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) (2000);

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

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 above

opinion and order was adopted on September 20, 2001, by a vote of 6-0.