BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB No. 02-77
) (Enforcement-Land)
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., an Illinois )
Corporation, SHERRI CLEMENTI, )
individually and as President of )
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., and MICHAEL )
LORENCE individually, )
)
Respondents. )
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that today I have electronically filed with the Pollution Control
Board the following, Complainant’s Response to Lorence’s Motion for Relief from and Review
of Final Opinion and Order, Notice of Appearance, Notice of Filing, and Certificate of Service,
on behalf of the People of the State of Illinois, a copy of which is attached and hereby served
upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General State of Illinois
BY:____________________________________
STEPHEN J. SYLVESTER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-2087
DATE: August 5, 2005
THIS FILING IS SUBMITTED ON RECYCLED PAPER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
SERVICE LIST
Mr. Matt B. Fuesting
Kupisch & Carbon, Ltd.
201 N. Church Road
Bensenville, IL 60106
Ms. Sherri Clementi
1133 Hill Crest Drive
Carol Stream, IL 60188
Mr. Peter Orlinsky
Assistant Legal Counsel
Illinois Environmental Protection Agency
9511 West Harrison St. 3rd Floor
Des Plaines, IL 60016
Mr. Bradley Halloran
Chief Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street, 11th Floor
Chicago, IL 60601
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB No. 02-77
) (Enforcement-Land)
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., an Illinois )
Corporation, SHERRI CLEMENTI, )
individually and as President of )
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., and MICHAEL )
LORENCE individually, )
)
Respondents. )
NOTICE OF APPEARANCE
Pursuant to Section 101.400 of the Illinois Pollution Control Board Rules and
Regulations, 35 Ill. Adm. Code 101.400, I hereby file my Appearance in this proceeding.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General State of Illinois
BY:____________________________________
STEPHEN J. SYLVESTER
Assistant Attorney General
Environmental Bureau
188 W. Randolph St., 20th Floor
Chicago, Illinois 60601
(312) 814-2087
DATE: August 5, 2005
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
CERTIFICATE OF SERVICE
I, STEPHEN J. SYLVESTER, an Assistant Attorney General, certify that on the 5
th
day
of August, 2005, I caused to be served by First Class Mail the foregoing Complainant’s
Response to Lorence’s Motion for Relief from and Review of Final Opinion and Order, Notice
of Appearance, and Notice of Filing to the parties named on the attached Service list, by
depositing same in postage prepaid envelopes with the United States Postal Service located at
100 West Randolph Street, Chicago, Illinois 60601.
____________________________
STEPHEN J. SYLVESTER
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS, )
)
Complainant, )
)
v. ) PCB No. 02-77
) (Enforcement-Land)
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., an Illinois )
Corporation, SHERRI CLEMENTI, )
individually and as President of )
MILLENIUM RECYCLING & SOLID WASTE )
CONSULTANTS, INC., and MICHAEL )
LORENCE individually, )
)
Respondents. )
RESPONSE TO LORENCE’S MOTION FOR RELIEF
FROM AND REVIEW OF FINAL OPINION AND ORDER
Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby submits its Response to
Respondent’s, MICHAEL LORENCE (“Lorence”), Motion for Relief From and Review of Final
Opinion and Order and states as follows:
1. On December 12, 2001, the Complainant filed a four-count complaint against
Respondent MILLENIUM RECYCLING & SOLID WASTE CONSULTANTS, INC.
(“Millenium”), an Illinois corporation, alleging violations of the Illinois Environmental
Protection Act (“Act”), 415 ILCS 5/1
et seq.
(2002).
2. On April 10, 2003, the Complainant filed its Motion for Leave to File an
Amended Complaint against Respondent Millenium, and added SHERRI CLEMENTI
(“Clementi”) and Lorence as parties to the Amended Complaint. In its Amended Complaint,
Complainant alleged Respondents violated Sections 21(a), 21(d)(1), 21(e), and 21(p)(1) of the
Act, 415 ILCS 5/21(a), (d)(1), and (p)(1) (2002).
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
2
3. Section 103.204 of the Board’s Procedural Rules, 35 Ill. Adm. Code 103.204,
provides in pertinent part:
Notice, Complaint, and Answer
a) An enforcement proceeding will be commenced by the service of a notice
and complaint by registered certified mail, messenger service, or personal
service upon all respondents and the filing of 1 original and 9 copies of the
notice and complaint with the Clerk.
4. On April 10, 2003, in conformity with Section 103.204 of the Board’s Procedural
Rules, 35 Ill. Adm. Code 103.204, Complainant, People of the State of Illinois, mailed its Notice
of Filing and Motion for Leave to File an Amended Complaint with the Amended Complaint
attached to the motion, by certified mail return receipt requested, to Respondents, Clementi and
Lorence, at 1133 Crest Hill Drive, Carol Stream, DuPage County, Illinois.
5. On April 12, 2003, Bianca Balaskovits, Respondent Clementi’s daughter who was
14 years old at the time, signed the return receipt for and accepted the Complainant’s Notice of
Filing and Motion for Leave to File an Amended Complaint with the Amended Complaint
attached to the motion, which were addressed to Clementi and Lorence. See
Exhibit A
entitled
“Affidavit of Sherri Clementi” attached and incorporated by reference to this Response.
6. Complainant complied with Section 103.204 of the Board’s Procedural Rules, 35
Ill. Adm. Code 103.204, by serving the Amended Complainant by certified mail, and thus the
Board had jurisdiction over Lorence in this case.
7. However, Respondent Lorence claims that he didn’t have any knowledge of the
Amended Complaint “received and signed by ‘Bianca Balasko’ on April 12, 2003.,” Motion at ¶
7, and Respondent Lorence also claimed that he did not reside at 1133 Hillcrest Drive, Carol
Stream, DuPage County, Illinois on April 12, 2003. Motion at ¶ 4. This is not true.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
3
8. Respondent Michael Lorence resided with Respondent Sherri Clementi and
Bianca Balaskovits at 1133 Hillcrest Drive, Carol Stream, DuPage County, Illinois from
December 1997 through August 2002 and from November 2002 through June 2003, and
therefore Lorence knows that Bianca Balasko and Bianca Balaskovits are one and the same
person. See
Exhibit A.
9. On or about April 12, 2003, Sherri Clementi, one of the individually named
Respondents in this case, gave Michael Lorence the Amended Complaint in the case of People v.
Millenium Recycling and Solid Waste Consultants, Inc., Sherri Clementi, and Michael Lorence,
case number PCB 02-77, which was addressed to Michael Lorence and that Bianca Balaskovits
had accepted and signed the return receipt for. See
Exhibit A.
Therefore, Michael Lorence
received the Amended Complaint in this case, and he was unequivocally served in conformity
with Section 103.204 of the Board’s Procedural Rules, 35 Ill. Adm. Code 103.204.
10. Subsequent to the April 12, 2003 service of the Amended Complaint on Lorence,
the following activities occurred in this case:
a) On May 15, 2003, the Board issued an Order granting Complainant’s
Motion for Leave to File an Amended Complaint;
b) On October 2, 2003, the Board issued an Order requiring Complainant to
file the “green card” proof of service of the Amended Complaint on
Respondent, Lorence, and required
Respondent Lorence to Answer the
Amended Complaint by December 1, 2003;
c) On November 3, 2003, Complainant filed proof of service of the April 10,
2003 Amended Complaint, including
attached copies of the Notice of
Filing, Service List, Certificate of Service, and the “green card” Return
Receipts from Respondents Sherri Clementi and Michael Lorence;
d) On December 15, 2004, Complainant filed its Motion to Deem Facts
Admitted and for Summary Judgment against Millenium, Clementi, and
Lorence, as none of the Respondents filed an Answer to the Amended
Complaint; and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
4
e) On February 19, 2004, the Board issued an Order granting Complainant’s
Motion to Deem Facts Admitted and for Summary Judgment finding that
Millenium, Clementi and Lorence (collectively “Respondents”) had
violated Sections 21(a), 21(d)(1),
21(e), and 21(p)(1) of the Act, 415 ILCS
5/21(a), (d)(1), and (p)(1) (2002),
and ordering Respondents to pay a civil
penalty of $25,000.00 within 60 days.
11. Respondent Lorence clearly had notice of this lawsuit against him and he simply
chose to ignore it. See
Exhibit A.
12. Section 101.904 of the Board’s Procedural Rules, 35 Ill. Adm. Code 101.904,
provides, in pertinent part:
b) On written motion, the Board may relieve a party from a final order entered in a
contested proceeding, for the following:
*
*
*
3) Void order, such as an order based upon jurisdictional defects.
*
*
*
d) A motion under subsection (b) of this Section must be filed with the Board within
one year after entry of the order except that a motion pursuant to subsection (b)(3)
of this Section must be filed within a
reasonable time after
entry of the order.
(Emphasis added.)
13. On February 1, 2005, the People of the State of Illinois, filed a complaint in
DuPage County Circuit Court against the Respondents, to enforce the February 19, 2004 Board
Order. Attached and incorporated by reference to this Response as
Exhibit B
is the Complaint,
People v. Millenium Recycling and Solid Waste Consultants, Inc., Sherri Clementi, and Michael
Lorence, case number 05 L 121.
14. On September 20, 2004, a letter with the February 19, 2004 Board Order attached
was sent by the Complainant to Respondent Lorence by certified mail return receipt requested.
Attached and incorporated by reference to this Response as
Exhibit C
is the September 20, 2004
Letter to Respondent Lorence and the “green card” proof of service.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
5
15. On July 22, 2005, more than 2 years after the Amended Complaint was served
upon him, one year and 5 months after the February 19, 2004 Board Order was issued, and 10
months after Lorence received a copy of the February 19, 2004 Board Order attached to
Complainant’s letter, Respondent Lorence filed his Motion with the Board for relief from the
February 19, 2004 Board Order.
15. Complainant does not know of any case law that addresses what constitutes a
“reasonable time” after entry of a Board order, but Lorence’s claim that he was not served with
the Amended Complaint in this matter more than 2 years after the Amended Complaint was
served upon him, a year and 5 months after the February 19, 2004 Board Order was issued, and
10 months after Lorence received a copy of the February 19, 2004 Board Order attached to
Complainant’s letter is surely an unreasonable amount of time.
CONCLUSION
On or about April 12, 2003, Respondent Lorence was served the Amended Complaint in
this case, and he was clearly served in conformity with Section 103.204 of the Board’s
Procedural Rules, 35 Ill. Adm. Code 103.204. Therefore, the Board had proper jurisdiction over
Respondent Lorence during the proceedings in this case.
Additionally, Respondent Lorence filed his Motion matter more than 2 years after the
Amended Complaint was served upon him, a year and 5 months after the February 19, 2004
Board Order was issued, and 10 months after Lorence received a copy of the February 19, 2004
Board Order attached to Complainant’s letter in what surely amounts to an unreasonable amount
of time. Respondent Lorence chose to ignore the lawsuit brought before the Board and did not
participate in its litigation when he had an opportunity to do so. On February 19, 2004, the
Board found that Respondent Lorence violated Sections 21(a), 21(d)(1), 21(e), and 21(p)(1) of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
6
the Act, 415 ILCS 5/21(a), (d)(1), and (p)(1) (2002), and ordered him to pay a civil penalty of
$25,000.00 within 60 days.
Since Respondent Lorence was properly served with the Amended Complaint in this
matter, and he delayed the filing of his Motion for an unreasonable amount of time, the February
19, 2004 Board Order should remain in full force and effect as to Respondent Lorence, and his
Motion for Relief from and Review of Final Opinion and Order should be denied.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
Attorney General of the State of Illinois
BY: __________________________________
STEPHEN J. SYLVESTER
Assistant Attorney General
Environmental Bureau North
188 West Randolph St., 20
th
Floor
Chicago, Illinois 60601
312-814-2087
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
1b
EXHBIT
1
AFFIDAVIT OF SHERRI CLEMIENTI
I, Sherri Clementi, after being duly sworn on oath, state that if called upon to
testify'
in this matter, I would competently testify'
as follows:
1.
1 am one of the named Respondents ih the lawsuit, People v. Milleniumn
Recvclinil and Solid Waste Consultants. Inc.-.Sherri Clementi. and Michael Lorence, case
number PCB 02-77, and I am familiar with the facts of the case.
2.
I have resided at 1133 Hicrest.Drive, CaroLStreain, DuPage Cpunty,
Illinois since January 1990.
3.
Bianca Balaskovits is my daugh ter and is currently sixteen years old and
she has resided with me at 1133 Hillcrest Drive; (Jrol Stream, Illinois since January
1990.
4.
Michael Lorence, the other indi'&idually named Respondent in the lawsuit,
resided with me at 1133 Hillcrest Drive, Carol Stream, DuPage County, Illinois from
December 1997 through August 2002 and from November 2002 through June 2003,
5.
On April 12, 2003, my daughter, Bianca Balaskovits signed the return
receipt for two packages that had been sent from the Illinois Attorney General's Office
via certified mail, which were addressed, one to Michael Lorence and one to Sherri
Clementi.
The package addressed to me contained an Amended Complaint in-the case of
Peo~ple v. Millenium Recycling and Solid Waste Consultants. Inc.. Sherri Clementi. and
Michael Lorence, case number PCB 02-77.
6.
On or about April 12, 2003, I gave Michael Lorence the package that my
daughter, Bianca Balaskovits had accepted and signed the return receipt for, which the
Illinois Attorney General's Office had sent and that was addressed to him.
He opened the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
package in my presence, and I saw that it contained the Amended Complaint in the case
of Peoplev Milnun
Recvcling and Solid Waste Consultants. Inc.. Sherri Clenmenti,
and Michael Lorence, case number PCB 02-77.
7.
After opening the package and reviewing it in my presence, Mfichael
Lorence told me not to
worry
and that he would take care of the lawsuit, People v.
Millenium Recycling~ and Solid Wa ste Consultants. Inc.. Shenri Clementi. and Michael
Lor~gene
case number PCB 02-77.
FURTHER AFFIANT SAYETH NOT
sflrf!Clmenti
Subscribed and 5wopi to
before me NO
eA:&ff
day of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
EXHIBIT
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICI
DUPAGE COUNTY, ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA
MADIGAN,
Attorney
?005L000121FIE
General of the State of Illinois,
)Feb
01 2005
-
10:44 AMl
4tatus Date:
05102105
Plaintiff,
tJgmt
Date:
07/20/05
assigned To: 2016
J,,•.
V.
)
No.___
RECYLIN
&
SLIDWAST
)a8T1
JUDICIAL
CIRCUIT
MILLENIUMRCYLNGNSOI
WAT
DU
PAGE COUNTYILNI
CONSULTANTS,
INC.,
an
Illinois
corporation, SHERRI CLEMENTI,
individually and as President of
MILLENIUM RECYCLING & SOLID WASTE
CONSULTANTS, INC., and MICHAEL
LORENCE individually,
Defendants.
COMPLAINT TO ENFORCE ORDER AND CIVIL PENALTIES
Plaintiff, PEOPLE OF THE STATE OF
ILLINOIS,
ex rel.
LISA
MADIGAN, Attorney General of the State of Illinois, complains of
the Defendants, MILLENIUM RECYCLING & SOLID WASTE CONSULTANTS,
INC. ("Millenium"), an Illinois corporation, SHERRI CLEMENTI
("Clementi"), individually and as President of MILLENIUM
RECYCLING & SOLID WASTE CONSULTANTS, INC., and MICHAEL LORENCE
("Lorence") individually, as follows:
COUNT I
VIOLATION OF ILLINOIS POLLUTION CONTROL BOARD ORDER
1.
This Complaint is brought on behalf of the People of
the state of Illinois,
ex relt
LISA MADIGAN, Attorney General of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
the State of Illinois, on her own motion and at the request of
the Illinois Environmental Protection Agency ("Illinois EPA").
2.
The Illinois EPA is an administrative agency of the
State of Illinois, created pursuant to Section 4 of the Illinois
Environmental Protect Act ("Act"), 415 ILCS 5/4 (2002), and is
charged
inter alia
with enforcing the Act.
3.
This Complaint is brought pursuant to Section 42 of
the Act, 415 ILCS 5/42 (2002).
4.
The Illinois Pollution Control Board ("Board") is an
independent body created by the Act and empowered to conduct
hearings on complaints charging violations of the Act or of
rules and regulations promulgated by the Board, 415 ILCS S/S
(2
002)
5
.
Defendant, Millenium, was an Illinois corporation that
operated at 31W620 Spaulding Road, Elgin, Cook County ("Site").
Defendant, Clementi, was the president and registered agent of
Millenium. Defendant, Lorence was the operations manager
responsible for the day-to-day operations at the Site.
6.
On December 12, 2001, the State filed a four-count
complaint against Millenium with the Board, alleging that
Millenium caused or allowed open dumping, conducted a wasted
disposal operation without a permit, disposed of waste at an
unpermitted facility, and caused or allowed litter in violation
of Section 21(a)., (d)
(1),
Ce), and (p)
(1) of the Act, 415 ILCS
--
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
21(a), (d)
(1), (e)
,
and (p)
(1) (2002).
On April 10, 2003, the
State filed an amended complaint, which added Clementi and
Lorence as Respondents in the case.
7.
On Februaty 19, 2004, the Board issued an Order
finding that Millenium, Clementi, and Lorence had violated
Section 21(a), (d)
(1),
Ce), and (p) (1) of the Act, 415 ILCS
21(a)
,
(d) (1),
Ce)
,
and (p) (1) (2002)
,
and ordering Millenium,
Clementi, and Lorence to pay $25,000.00 in civil penalties~plus
interest.
(Hoard order of February 19, 2004 incorporated by
reference and attached as exhibit A)
8.
The Board's February 19, 2004 Order provided, in
pertinent part, as follows:
1.
The Board finds that Millenium Recycling & Solid
Waste Consultants, Inc. (Millenium)
,
Sherri
Clementi (Clementi) and Michael Lorence (Lorence)
(collectively respondents) have violated 415 ILCS
21(a), (d)
(1),
Ce) and (p)
(1) (2002);
2.
The respondents must pay a penalty of $25,000 for
violating Sections 21(a), (d)
Cl), (e) and Cp) (2)
of the Act. 415 ILCS 5/21(a), (d)
(1),
Ce) and
(p)
C1)
(2002).
3.
The respondents must pay $25,000 within 60 days
of the date of this order. Such payment must be
made by certified check or money order payable to
the Treasurer of the State of Illinois,
designated to the Environmental Protection Trust
Fund, and must be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
.P.O. Box 19276
Springfield, IL 62702
-
3
-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
Respondents must write their federal employ&r
identification number or social security number
on the certified check or money order. Any such
penalty not paid within the time prescribed will
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 will
not accrue during the pendency of an appeal
during which payment of the penalty has been
stayed.
4.
The respondents must cease and desist from any
further violations of the Act, and associated
regulations.
10.
The Board's February 19, 2004 order has not been
modified, vacated, or set aside.
It remains in full force and
effect.
11.
As of the date of filing of this Complaint, the
Defendants, Millenium, Clementi, and Lorence have failed to pay
the $25,000.00 civil penalty as ordered by the Board.'
12.
Section 42 of the Act, 415 ILCS 5/42 (2002), provides,
in pertinent part, as follows:
a)
[Alny person
.
.
.
that violates any
determination or order of the Board pursuant to
this Act, shall be liable to a civil penalty of
not to exceed $50,000 for the violation and an
additional civil penalty of not to exceed
$10,000.00 for each day during which the
violation continues;
g)
All final orders imposing civil penalties
pursuant to this Section shall prescribe the time
for payment of such penalties.
If any such
--
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
penalty is not paid within the time prescribed,
interest on such penalty at the rate set forth in
subsection (a) of Section 1003 of the Illinois
Income Tax Act, shall be paid for the period from
.the date payment is due until the da'te payment is
received. However, if the time for payment is
stayed during the pendency of an appeal, interest
shall not accrue during such stay.
13.
Section 3.315 of the Act, 415 ILCS 5/3.315 (2002),
provides as follows:
"Person" is any individual, partnership, co-
partnership, firm, company, limited liability
company, corporation, association, joint stock
Company, trust, estate, political subdivision,
state agency, or any other legal entity, or their
legal representative, agent or assigns.
14.
Millenium, a corporation, and Clementi and
Lorence, individuals, are "persons" as that term is defined
in Section 3.315 of the Act, 415 ILCS 5/3.315 (2002).
15.
Because Defendants failed to pay, or arrange for
the payment of the $25,000.00 civil penalty as ordered by
the Board, Defendants are liable for the interest accrued,
beginning April 20, 2004, on the unpaid penalty in the
amount of $534.25, representing interest throu~h November
1, 2004, and $2.83 per day thereafter through the date of
payment, pursuant to Section 42(g) of the Act, 415 ILCS
5/42 (9) (2002).
16.
Because Defendants failed to pay the $25,000.00
penalty and the interest accrued pursuant to Section 42(g) of
the Act, 415 JIGS 5/42(g) (2002), Defendant~s have violated the
5-
S
-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
Board's February 19, 2004 Order and are liable for an additional
civil penalty pursuant to Section 42(a) of the Act, 415 ILCS
5/42 (a)
(2002)
17.
Section 31.1(g) of the Act, 415 ILCS 5/31.1(g) (2002),
provides as follows:
All orders issued and entered by the Board pursuant to
this Section shall be enforceable by injunction,
mandamus, or other appropriate remedy, in accordance
with Section 42 of this Act.
18.
Therefore, this Court has jurisdiction to enforce the
Board's February 19, 2004 Order and to order the appropriate
relief for the violation alleged herein.
WHEREFORE, Plaintiff, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that this Court enter a judgment in favor
of Plaintiff and against Defendants, MILLENIUM RECYCLING & SOLID
WASTE CONSULTANTS, INC., an Illinois corporation, SHERRI
CLEMENTI, individually and as President of MILLENIUM RECYCLING &
SOLID WASTE CONSULTANTS, INC., and MICHAEL LORENCE individually,
on Count I:
1.
Find that the Defendants have willfully, knowingly and
repeatedly violated the Board's February 19, 2004 Order;
2.
Enter judgment on behalf of the Plaintiff and against
the Defendants for the unpaid civil penalty in the amount of
$25,000.00 plus $534.25, representing interest through November
--
6
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
1,
204,and $2.83 per day thereafter throug
h aeo
payment;
3.
Assess a civil penalty of $50,000.00 against the
Defendant for each violation of the Board's February 19, 2004
.Order, with an additional penalty of $10,000.00.per day for each
day that the violation continues;
4.
Tax all costs in this action, including expert
witness, consultant and attorney fees, against the Defendants
pursuant to Section 42(f) of the Act, 415 ILCS 5/42(f) (2002);
and
--
7
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
S.
Grant any other relief that this court deems just and
appropriate.
PEOPLE OF-THE STATE OF ILLINOIS,
by LISA MADlIGAN, Attorney
General of the State of Illinois,
MATTHEW
J. DUNN,
Chief
Environmental Enforcement!
Asbestos Litigation Division
By:
Assisant
ttorney Gnerl
--.
Environmental Bureau Not
of Counsel:
STEPHEN J. SYLVESTER
Assistant Attorney General
Environmental Bureau North
188 West Randolph Street, 20th Floor
Chicago, Illinois 60601
(312) 814-2087
-8-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
ILLINOIS POLLUTION CONTROL BOARD
February 19, 2004
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant)
V.
)
PCB 02-77
)
(Enforcement
-
Land)
MILLENIUM RECYCLING & SOL)
WASTE CONSULTANTS, INC., SHERRI)
CLEMENTI, individually and as president of.)
MILLENIUM RECYCLING & SOLID)
WASTE CONSULTANTS, INC., and)
MICHAEL LORENCE, individually,)
Respondents.)
OPINON
AND.
ORDER OF THE BOARD (by T.E. Johnson):
On December 15, 2003, the Office of the Attorney General, on behalf of the People of the
State of Illinois (People), filed a motion to deem facts admitted and for sununary judgment
against Millenium Recycling & Solid Waste Consultants, Inc. (Millenium), Sherri Clementi
(Clementi), and Michael Larence (Lorence) (collectively respondents) on all counts of the
amended complaint filed in this matter. To date, no respondent has filed any response to the
motion.
For the reasons set forth below, the Board grants the People's motion. The Board finds
that the respondents have violated the Environmental Protection Act (Act) as alleged in the
amended complaint, and imposes a $25,000 penalty on the respondents..
BACKGROUND
On December 12, 200 1, the People filed a complaint against Millenium alleging
violations of Sections 21(a), 21 (d)(1), 21(e), and 2l(p)(l) of the Act.
415 ILCS 5/21(a), (d)(1),
(e), and (p)(l) (2002). The People alleged that Millenium violated these provisions by
conducting a waste disposal operation withdut a permit, and causing or allowing litter.
The
complaint concerns Millenium's facility at 3
1W620 Spaulding Road, Elgin, Cook County.
On January 23, 2003, the Board granted Milleniumn's attorney motion to withdraw.
In
order to avoid any undue delay in the resolution of this case, the Board ordered Millenium to
retain an attorney who was directed to file an appearance on or befor e February 24, 2003, and an
answer to the complaint on or before March 24, 2003. At a telephonic status conference held on
March 4, 2003, Clementi, 'not a licensed attorney, attempted to appear on behalf of respondent
Millenium in her capacity as registered agent.
Clementi represented that the respondent
corporation is dissolved and bankrupt and lacked the funds to retain an attorney.
By order dated
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
2
March 4, 2003, the hearing officer gave Clenienti until March 19, 2003, to respond to the
January 23, 2003 Board order. No response was received bythe Board;-
On April 10,2~003, the People filed an amended complaint that added Sherri Clementi
and Michael Lorence as respondents.
The Board accepted the amended complaint on May 15,
2003, advising Sherri Clementi and Michael Lorence that their time to fie any answer'
or
responsive motion to the complaint would begin to run fr-om their respective receipt of the order.
on August 21, 2003, the Board ordered respondent Milleniumn to show cause why a default order
in this case should not be entered for failure to appear at numerous status conferences.
The
Board allowed Millenium until September 4, 2003, to respond to this order.
On September 17, 2003 the Board received a Discharge of Debtor Order dated September
8,
2003 issued by the U. S. Bankruptcy Court (N.D. Dl1.) regarding "Sherri Lynn Clementi AYA:
Millenium Recycling."
In re
Sherri Lynn Clementi. No. 03-203 18 (Bankr. N.D. Ml.
Sept 8,
2003).
On October 2, 2003, the Board issued an order finding Milleniumn in default for repeated
failure to comply with Board and hearing officer orders to appear and proceed with this case.
The Board found Millenium had violated Section 21(a), 2 1(d)(1), 21l(e), and
2l(~p)(l) of the Act,
as alleged, by conducting a waste disposal operation without a permit, and causing or allowing
lifter. The order also addressed an alleged deficiency in service by allowing Lorence until
December 1,
2003, to answer the amended complaint; and directed the People to file a motion or
other appropriate pleading regarding the appropriate remedy or penalty.
On November 3, 2003, the People filed proofs of service showing that service of the
amended complaint on Clementi and Lorence was achieved on April 12, 2003. The instant
motion was, as stated, filed on December 15, 2003.
No hearing has been held in this matter.
FACTUAL SUMMAARY
At all times pertaining to the violations alleged in the complaint, Millenium. was an
Illinois corporation operating at 31W620 Spaulding Road, Elgin, Cook County. An. Corn. at 2
Clementi is the president and registered agent for Mfillenium, and communicated directly with
the Agency regarding the environmental issues alleged in the amended complaint.
Id.
Lorence
is
the operations manager responsible for day-to-day operations.
Id.
As part of the business, Millenium regularly accepted various types of Waste and refine
such as wood, construction debris and garbage at the site.
Am. Corn. at 3. The majority of the
waste was wood that was ground and shred to produce animal bedding and compost for
landscaping.
Id.
Millenium also separated construction and demolition debris, cardboard and
metal for offsite recycling.
Id.
The site at which these activities occurred was never permitted
by the Agency for the disposal of waste.
Am. Corn. at 5,7.
In a letter dated February 13, 2001, Clernenti stated that Millenium has removed all the
garbage, except "daily activity," from the site and is in the process of moving from the site.
Am.
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3
Corn.
BEx. B. Clementi asserts in that letter that the new owner of the property has been dumping
mixed debris on the site.
Id.
MOTION TO DEEM FACTS ADMITTD
-The
People contend that the Board's October 2, 2003 order required Lorence to answer
the amended complaint on or before December 1, 2003, and that Lorence has not yet filed an
answer or other pleading in response to the amended complaint
Mat. at 2. The People assert
that by failing to answer the amended complaint by December 1,
2003, or by failing to file a
*motion
staying the 60-day period in which to file an answer, Lorence has admitted the material
allegations asserted in the amended complaint. Mot. at 4.
The People contend that the amended complaint was served on Cleminti by certified mail
on April 12, 2003, that Clementi has appeared before the Board, and has not filed any answer or
other pleading in response to the amended complaint. Mat. at 3. The People assert that by
failing to answer the anmended complaint by June I11, 2003, or by failing to file a motion staying
the, 60-day period in which to file an answer, Clemnenti has admitted the material allegafions
asserted in the amended complaint.
Mot. at 4.
The People request that that pursuant to Section 103 .204(d) and (e) of theBoard's
procedural rules, the Board find Lorence and Gleinenti have admitted all material allegations
asserted in the amended complaint.
Mot. at 4.
The Board's Procedural Rules
Section 103.204 of the Board's procedural rules for enforcement actions provides in
part:
Except as provided in subsection (e) of this Section, the respondent may file an
answer within 60 days after receipt of the complaint if respondent wants to deny
any allegations in the complaint. All material allegations of the complaint will be
taken as admitted if no answer is filed or if not specifically denied by the answer,
unless respondent asserts alack of knowledge sufficient to formna belief. 35I I.
Adm. Code 103.204(d).
Subsection (e) indicates that the 60-day period to file an answer will be stayed if a
respondent timely files a motion attacking the sufficiency of the complaint under Section
10 1.506 of the Board rules, or claiming the complaint is duplicative or frivolous under Section
103.212(b).
35 M1.
Adm. Code 103.202(e);
see also
35 Ill. Admn. Code 101.506, 103.212(b).
Subsection (f) provides:
Any party serving a complaint upon another party must include the following
language in the notice:
"Failure to file an answer to this complaint within 60
days may have severe consequences.
Failure to answer will mean that all
allegations in the complaint will be taken as if admitted for purposes of this
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
4
proceeding. If you have any questions about this procedure, you should
contact the hearing officer assigned to this proceeding, the Clerk's Office or an
attorney."
35 Ill. Adm.-Code 103.204(f).
Discussion
To date, neither Lorence nor Clemnenti have filed any response to the motion to deem
facts admitted. If a party files no response to a motion within 14 days the party will be deemed
to have waived objection to the granting of the motion.
See
35111l. Adm. Code 10 1.500(d).
The Board grants the People's motion to deem facts admitted. The notice of filing
attached to the amended complaint contained language regarding failure to answer the complaint,
as required by Section 103:204(f) of the Board rules.
351I11. Adm. Code .103.204(f0.
The Board
deems admitted the material allegations alleged in the People's amended complaint against
Lorence and Clementi.
MOTION FOR SUMMARY JUDGMIENT
Section 101.516(b) of the Board's procedural rules for enforcement actions provides:
If the record, including pleadings, depositions and admissions on file,
together with any affidavits, shows that there is no genuine issue of
material fact, and that the moving party is entitled to judgment as a matter
of law, the Board will enter summary judgment.
3
5 111. Adm. Code
101.516(b).
Summrnay judgment is appropriate when the pleadings and depositions, together with any
affidavits and other items in the record, show that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
See
Dowd & Dowd. Ltd. v.
.jGleaon,
18111E.
2d 460, 693 N.E.2d 358 (1998).
In ruling on a motion for summary judgment,
the Board "must consider the pleadings, depositions, and affidavits strictly against the movant
and in favor of the opposing party." Dod 181 El1. 2d at 483, 693 N.E.2d at 370.
Summary judgment is a drastic means of disposing of litigation, and therefore it should
only be granted when the movant's right tothe relief is clear and free from doubt." Dowd, 181,
111. 2dat 483, 693 N.E.2d at 370, citing Purtill v. Hess. 111I11. 2d 229, 240,489. N.E.2d 867,
871 (1986).
However, a party opposing a motion for summary judgment may not rest on its
pleadings, but must "present a factual basis, which would arguably entitle (it] to a judgment."
G~authier v. Westfall
266111l. App. 3d 213, 219,'639 N.E.2d 994, 999 (2nd Dist. 1994).
The People's Areuments
The People argue that if the Board finds that Lorence and Clemnenti have admitted all
material allegations asserted in the amended complaint then the record shows there is no genuine
issue of material fact left for review.
Mot. at 5. Accordingly, the People contend, summary
judgment in the People's favot as a matter of law is appropriate.
Id.
The People request that the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
5.
Board grant summary judgment in favor of the People and against the respondents on counts I
through IV of the amended complaint.
Mat, at 6. Further, the People ask the Board to find
Lorence and Clementi have violated Sections 2 1
(a), (d)(1), (e) and &p)(1)
of the Act
Id.
The People request that a civil penalty of $50, 000 be assessed against the respondents for
the violations, and further ask the Board to order respondents to cease and desist from further
violations of the Act and Board regulations.
Mat, at 8. As previously noted, the respondents did
not respond to the motion.
Alleged Violations
The amended complaint contains four counts alleging violations of Section 21 of the Act.
415 JLCS 5/21 (2004) Section 21(a) of the Act is aprohibition against open dumping of waste.
41 5 ILCS 5/21 (a) (2002).
Open dumping' is defined as the consolidation of refuse from one or
more sources at a disposal site that does not fulfill the requirements of a sanitary landfill.
415
ELCS 5/3.24 (2002).
'Sanitary landfill' is defined, in part, as a facility permitted by the Agency
for the disposal of waste. 415 ELCS 5/3.41 (2002).
'Reftine' is defined as waste, and 'waste' is
defined, in part, as any garbage or other discarded material.
415 ILCS 5/3.3 1 and 3.53 (2002).
Section 21(d)(1) prohi'bits the operation of a waste disposal operation without a permnit issued by
the Agency.
415ILOS9521(d)(l) (2002).
Section 21(e) of the Act provides, in pertinent part
that no person may dispose, treat, store or abandon any waste except at a site meeting the
requirements of the Act and regulations.
Section 21(p)(l) prohibits the open dumping of any
waste in a manner resulting in lifter.
415 ILOS 5/21(p)(l) (2002).
The Board will first address each of the four counts in turn, with the Board's analysis
following each count.
Once all four counts have been analyzed, the Board will turn to a penalty
determination.
DISCUSSION
The Board finds that the allegations deemed admitted pursuant to 35 III. Adm. Code
103.204(d) are sufficient to prove that the People are entitled to a judgment as a matter of law
against Lorence and Clemeriti under 35 111. Adm. Code 101.516(b).
Below the Board discusses
how the admitted facts support each of the four counts of the complaint in turn.
Count I
-
Open Dumping
In count I, the People contend that the respondents violated Section 2 1(a) of the Act (415
ILOS 5/21 (a) (2002)) by causing or allowing waste consisting of wood, garbage, construction
and demolition debris, cardboard, metal and other unidentifiable items to be discharged,
deposited, dumped, spilled or leaked onto a disposal site which does not fulfill the requirements
of a sanitary landfill, and therefore engaged in open dumping as that term is defined in the Act.
Am. Corn. at 5-6.
The People state that on April 20, 2000 and continuing through May, 2001 there were
various types of waste and refuse (wood, construction debris and garbage) piled on the site, and
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
6
that respondents did not demonstrate to the Agency that the waste~was properly disposed of at a
permitted facility.
Am. Corn. at 3. The People assert that the wood, garbage and other items
were and are waste and refuse as defined by the Act.
Am.
Corn, at 4. Further, the People
contend that the site were the waste and refuse was placed is and was a disposal site as defined in
the Act. Ant Corn. at 5.
Count II
-
Conducting a Waste Disposal Operation Without a Permit
The People contend in count II that the respondents violated Section 21(d) of the Act
(415 ILCS
5/21(d)
(2002)) by causing or allowing the disposal of waste and refuse on their site
from at least April 26, 2000 through May, 2001 without having an Agency permit to conduct a
waste disposal operation at the site. An. Comn, at 7-8.
The People assert that by accepting and
piling waste on the site without a permit, respondents operated a waste disposal operation in
violation of Section 2 l (d) of the Act. An. Corn, at 8.
Count III
-
Disposal of Waste at an Unpermitted Facility
The People state in count
mH
that respondents Sectio n 2 1(e) of the Act (415 ILCS
5/2 1(e))
by causing or allowing waste to be disposed of at an unpermitted site. Am. Corn. at 9-
10.
The
People assert that ftom at least April 26, 2000 and continuing through May, 2001 the site was
never permitted by the Agency for the disposal of waste, and that such disposal did occur.
Id.
Count IV
-
Causing or Allowin! Lifter
The People contend that the respondents violated Section 21(p)(1) of the Act (415 I1.05
5/2 1(p)(l) (2002)) by causing or allowing the open dumping of waste resulting iii litter at the*
site.
Am. Coin, at I11.
The People argue that the wood, garbage, construction and demolition
debris, cardboard, metal and other unidentifiable items constitute littler as contemplated in the
Act.
Id.
Board Analysis
As previously stated, the Board deems all of the. facts contained in the Peopl e's second
amended complaint admitted by Lorence and Clementi.
Accordingly, the Board finds that
Lorence and Clementi violated Section 21(a), 21(d)(1), 21(e), and 21®(pl) as alleged in the
amended complaint. Further, in the October 2, 2003 Board order, the Board found Milleniuin
had violated Section 21(a), 21(d)(l), 21(e), and 21(p)(1) as alleged in the amended complaint.
No party has filed a response to the motion.
Once again, if a party files no tesponse to a
motion within14 days the party will be deemed to have waived objection to the granting of the
motion.
See
35
MI.
Admn. Code 101.500(d).
The Board finds that no genuine issue of material
fact remains and that the People are entitled to judgment as a matter of law. The Board grants
the People's motion for summary judgment on all four counts.
REMEDY
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
7
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
I[LCS
5/33(c),
42(h) (2002).
If, after considering the Section 33(c) factors, the Board decides to
impose a civil penalty on the respondent, onily then does the Hoard consider. the Act's Section
42(h) factorsim determining the appropriate amount of the civil penalty.
Section 42(h) sets forth
factors that may mitigate or aggravate the civil penalty amount.
The People provided information regarding an appropriate remedy, including a civil
penalty, in their motion. The only remedy sought by the People is the imposition of a civil
penalty.. The People noted that $50,000 is the amount of civil penalty authorized by the Act for
one violation, and that respondents committed four violations over a period of one year. Mot. at
7. The People recommnend that a $50,000 penalty be imposed.
Mot. at 8.
Statutory Background
Section 33(c) of the Act states: "In makting its orders and determinations, the Board shall
take into consideration all the facts and circumstances bearing upon the reasonableness of the
emissions, discharges or deposits involved including, but not limited to:
(i)
the character and degree of injury to, or interference with the protection of the
health, general welfare and physical property of the people;
(ii)
the social and economic value of the pollution source;
(iii)
the suitability or unsuitability of the pollution source to the area in which it is
located, including the question of priority of location in the area 'involved;
(iv)
the technical practicability and economic reasonableness of reducing or
eliminating the'emissions, discharges or deposits resulting from such pollution
source; and
(v)
any sibsequent compliance."
415 ILOS 5/33(c) (2002).
According to Section 42(h) of the Act, in determining the appropriate civil penalty, the
Board considers any. matters of record in mitigation or aggravation of penalty, including "the
following factors:
(1) the duration and gravity of the violation;
(2) the presence or absence of due diligence on the part of the violator in
attempting to comply with requirements of this Act and regulations thereunder
or to secure relief therefrom as provided by this Act;
(3) any economic benefits accrued by the violator because of delay in compliance
with requirements;
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
8
(4) the amount of moneay penalty which will serve to deter fur'ther violations by
the violator and to otherwise aid in enhancing voluntary compliance with this
Act by the violator and other persons similarly subject to the Act; and
(5) the number, proximity in time, and gravity of previously adjudicated
violations of this Act by the violator."
415 ILCS 5/42(h)
(2002).'
D~iscussion
In determining what remedy is appropriate, the Board considers all facts and
circumstances of record that bear upon the reasdnableness of the respondents' violations of the
Act. 415 ILOS 5/33(c) (2002).
section
33(c)
Section 33(c) lists five factors the Board considers in malcing orders and deterrninations.
First, the facts and circumstances of this case show that the violations in question interfered with
the protection of the health, general welfare and physical property in an area around the site.
The
waste and refuse was dumped, and not properly stored or disposed.
See
415 ILCS 5/33(0)(i)
(2002).
Second, there is no evidence in the record showing that respondents' operation, as
conducted, had a social or economic value.
See
415 IJLCS 5/33(c)(ii) (2002).
Third, the waste or
refuse
was iIn
an area that would have been suitable were it disposed of or stored properly.
The
People did not provide any evidence indicating that the location was not suitable.
See
415 IICS
5/33(c)(iii) (2002).
Fourth, the record does not contain evidence concerning the technical
practicability and economic reasonableness of reducing or eliminating the emissions, discharges
or deposits resulting from such pollution source, but it is evident that the waste and refuse was
eliminated.
See
415 ILCS 5/33(c)(iv) (2002). Finally, the respondents did not comply with the
Act and left the waste and refuse for over a year.
See
415 ILCS 5/33(c)(v) (2002).
After considering the Section 33(c) factors, the Board finds that a civil penalty is proper
in this instance.
To determine the proper penalty, the Board considers factors listed in Section
42(h) of the Act.
section
42(h)
In determining the appropriate civil penalty, the Board considers any matters
of recdrd in mitigation or aggravation of penalty.
415 ILCS 42(h) (2002). The
Board's determination is aided by the five factors listed in Section 42(h) of the Act.
The People's Arguments
Concerning
42(h)
Factors.
In its motion, the People address
each of the 42(h) factors.
The People assert that in considering the duration and gravity of the
'Section 42(h) of the Act (415 IIJCS 5/42(h) (2002)). was substantially amended by P.A. 93-575,
effective January 1,
2004. The amendments include establishing that the economic benefit from
delayed compliance is a minimum penalty.
Because the complaint in this proceeding was fied
prior to January 1,
2004, the Board did not use the amendments to Section 42(h) of the Act in
determining the appropriate penalty in this proceeding.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
9
violations, the respondents' site was in violation of the Act for over a year
-
from at least April
20, 2000 through May, 2001.
Mot. at 7..
The People argue that the respondents exhibited no diligence whatsoever as is evidenced
by the length of time they left the site in an offensive condition and failed to answer the amended
complaint or otherwise comply with the Act.
Mot. at 7. The People assert that respon'dents
avoided the cost of cleaning the site for over one year and avoided the costs of getting the proper
permits from the Agency.
Id.
The People suggest that $50,000 will deter further violations of the Act by these
respondents and others similarly subject to the Act. Mot. at 7-8.
Finally, the People note that
they are unaware of any previously adjudicated violations against any of the respondents. Mat
atS8.
Board Analysis
of 42(h) Factors.
The record in this case clearly shows that the
violations in this matter lasted for over a one-year period of time. The respondents committed
serious violations that can lead to damage to the environment and human health and welfare.
Accordinlgly, the duration and
gravity
of the violations are weighed against the respondents.
See
415 TICS 5/42(h)(1) (2002).
The respondents did not exhibit due diligence in attempting to
comply with requirements of this Act and regulations.
The waste and refuse remained on site for
over one year after respondents were made aware of the violation.
This factor, too, is weighed in
aggravation of the civil penalty.
See
415 ILCS 5/42(h)X2) (2002).
The record shows that
respondents benefited from avoiding the cost of cleaning the site for aver one year and, and
further never incurred the costs of getting the proper permits from the Agency.
This factor is
weighed in aggravation of the penalty.
See
415 TICS
5142(h)(3)
(2002).
The respondents did
not promptly remediate the site, and have not been responsive during the proceeding before the
Board. Accordingly, the amount of monetary penalty which will serve to deter further violations
by the violator and other per-sons similarly subject to the Act must be substantial, and this factor
is aggravates the penalty.
See 41
5 ILCS 5/42(h)(4) (2002).
The record does not indicate that
any respondent has any previously adjudicated violations. Accordingly, this factor serves to
mitigate the civil penalty.
See
415 lICS 5/42(h)(5) (2002).
Penalty Determination
The Board finds that the nature of the violations in this matter posed potential risks to the
environment of the State as well as to. the people living near the site, for 13 months.
Accordinlgly, the Board finds that a substantial penalty is necessary.
However, any risk has
ended and the likelihood of the offense being repeated is minimal. Respondents no longer own
the site, and the corporation is -no longer in existence.
After consideration of the 33(c) and 42(h)
factors, the Board finds that a penalty of $25,000 is warranted in this case.
CONCLUSION
The Board grants the People's motion for summary judgment as to all counts in the
amended complaint. The Board finds that all the respondents have violated Section 2
1(a),
21(d)(1), 21(e), and 21p)(l) of the Act.
415JILOS 5/21(a), (d)(1), (e) and (p)(l) (2002).
The
Board imposes a civil penalty of $25,000 on the respondents.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
10
This opinion constitutes the Board's findings of fact and conclusions of law.
ORDER
1.
The Board finds that Millenium Recycling & Solid Waste Consultants, Inc.
(Millenium), Sherri Clenmenti (Clementi) and M~ichael Lorence (Lorence)
(collectively respondents) have violated 415 ILCS 21(a),(d)(1),
(e)
and (p)(l)
(2002);
2.
The respondents must pay a penalty of $25,000 for violating Sections 21 (a),
(d)(1), (e) and &p)(1)
of the Act
415
ILCS 5/2 1(a), (d)(1), (e) and (p)(l) (2002).
3.
The respondents must pay $25,000 within 60 days of the date of this order.
Such
payment must be made by~certifled check or money order payable to the
Treasurer of the State of illinois, designated to the Environmental Protection Trust
Fund, and must be sent by first class mail to:
illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62702
Respondents must write their federal employer identification number or social
security number on the certified check or money order.
Any such penalty not
*paid within the time prescribed will 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 will not accrue during the pendency of an appeal during which
* payment of the penalty has been stayed.
4.
The respondents must cease and desist from any firther violations of the Act, and
associated regulations.
IT IS SQ 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) (2002);
see
also
35M1.Adi. Codel101.300(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 El1. 2d R. 335.
The
Board's procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filied with the Board within
35
days after the order is received.
35 Ill. Adm. Code
101.520; see also 35
11l. Admi. Code 101.902, 102.700, 102.702.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certif
that the Boa~rd
adopted the above opinion and order on Februaryl19,2004, by avote of 5-0.
Dorothy M. Gunn, Clerk
Ilinois Pollution Control Board
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
IEXHIBIT
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
Lisa Madigan
ATFORNEY GENERAL
*
September 20, 2004
Certified Mail-Return Receipt Requested; and
United States Mail
Michael Lorence'
131 Fleetwood Dr.
Glendale Heights, IL 60139-1931
Re:
Peonle v. Millenium Recycling & Solid Waste Consultants.
Sheri Clementi. and Michael Lorence.
PCB
#02-77
Dear Mr. Lorence:
The Illinois Environmental Protection Agency has referred the above-referenced matter to
this Office for the initiation of a collection action and to enforce violations of the Illinois
Environmental Protection Act ("Act" ),
41 5
ILCS5/1 et seq.
Specifically, the State alleges that
you, by failing to pay an assessed civil penalty of $25,000.00 and the interest accrued to date:
1
.
Violated an Order of the fllinois Pollution Control Board (Attachment A) pursuant
to the Act, and thereby Violated Section 42(a) of the Act, 415 ILCS
5142(a)
(2002).
It is the policy of this Office to notify a potenial defendant before filing a complaint in an
effort to resolve the matter.
In your case, an acceptable alternative to litigation would be
payment of the $25,000.00 penalty and ihterest due under the Order and payment of a negotiated
civil penalty for violation of Section 42(a) of the Act.
Section 42 of the Act, 415 ILCS
5/42,
provides for penalties up to $50,000.00 per violation plus $10,000.00 per day that each violation
continues.
500
South
Second
Street,
Springfield, Illinois
62706
*
(17
782-1090
*TTY:
(217) 785-2771
*Fax:
(217) 782-7046
100
West
Randolph
Street,
Chicago, Illinois
60601
* (312) 814-3000
TrY:
(312)
814-3374
*Fax:
(312) 814-3806
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
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10
This opinion constitutes the Board's findings of fact and conclusions of law.
ORDER
1
.
The Board finds that Millenium Recycling & Solid Waste Consultants, Inc.
(Millenium), Sherri Clementi (Clementi) and Michael Lorence (Lorence)
(collectively respondents) have violated 415 ILCS 21I(a),(d)(1), (e) and (p)(1)
(2002);
2.
The respondents must pay a penalty of $25,000 for violating Sections 21 (a),
(d)(1), (e) and (p)(l) of the Act.
415 ILCS
5/21
(a),
(d)(1), (e) and (p)(1) (2002).
3.
The respondents must pay $25,000 within 60 days of the date of this order.
Such
payment must be made by certified check or money order payable to the
Treasurer of the State of Illinois, designated to the Environmental Protection Trust
Fund, and must be sent by first class mail to:
Illinois Environmental Protection Agency
Fiscal Services Division
1021 N. Grand Avenue East
P.O. Box 19276
Springfield, IL 62702
Respondents must write their federal employer identification number or social
security number on the certified check or money order.
Any such penalty not
paid within the time prescribed will 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 will not accrue during the pendency of an appeal during which
payment of the penalty has been stayed.
4.
The respondents must cease and desist from any further violations of the Act, and
associated regulations.
IT IS SO ORDERED.
Section 4 1(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
111. 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 III. 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
10
1.520; see also 35
Ill. Adm. Code 101.902, 102.7009,
102.702.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above opinion and order on February 19, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
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so that we can return the card to you.
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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 5, 2005
