ILLINOIS POLLUTION CONTROL BOARD
    November 6, 2003
     
    PEOPLE OF THE STATE OF ILLINOIS,
     
    Complainant,
     
    v.
     
    4832 S. VINCENNES, L.P., an Illinois limited
    partnership, and BATTEAST
    CONSTRUCTION COMPANY, INC., an
    Indiana corporation,
     
    Respondents.
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    PCB 04-7
    (Enforcement - Air)
     
    ORDER OF THE BOARD (by T.E. Johnson):
     
    Today the Board accepts for hearing the first amended complaint, which replaces as a
    respondent Batteast Construction Company of Illinois, Inc., an Illinois corporation, with a
    different corporate entity, Batteast Construction Company, Inc., an Indiana corporation. The
    Board also dismisses the former company from this proceeding.
     
    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. and Batteast
    Construction Company of Illinois, Inc. According to the complaint, respondents violated
    asbestos requirements while renovating a four-story, 67-unit, residential apartment building at
    4832 S. Vincennes Ave., in Chicago, Cook County. On July 24, 2003, the Board accepted the
    original complaint for hearing.
     
    On September 22, 2003, with the hearing officer’s leave, Batteast Construction Company
    of Illinois, Inc. filed a motion to be dismissed from this proceeding, asserting that it was not the
    operator or manager of the renovation site as alleged in the comp
    People filed a motion for leave to file a first-amended complaint, attaching the first amended
    complaint. In its motion, the People state that Batteast Construction Company, Inc. (not Batteast
    Construction Company of Illinois, Inc.) renovated the site and is the proper respondent in this
    case. The People seek to have the Board dismiss Batteast Construction Company of Illinois,
    Inc., and substitute as a respondent Batteast Constr
    amended complaint.
     
    The Board’s procedural rules provide:
     
    The Board will not dismiss an adjudicatory proceeding for misjoinder of parties.
    *** As justice may require, the Board may add new parties and dismiss
    misjoined parties at any stage of an adjudicatory proceeding. 35 Ill. Adm. Code
    101.403(b).
     
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    Consistent with this rule, the Board grants the motion of Batteast Construction Company
    of Illinois, Inc. to be dismissed from this proceeding because it was misjoined after being
    incorrectly identified as the alleged operator and manager of the renovation site. The Board also
    grants the People’s motion for leave to file the first amended complaint and accepts the first
    amended complaint for hearing. The first-amended complaint substitutes Batteast Construction
    Company, Inc. for Batteast Construction Company of Illinois, Inc., but is otherwise materially
    the same as the complaint the Board accepted for hearing on July 24, 2003. 4832 S Vincennes,
    L.P., an Illinois limited partnership and alleged owner of the site building, remains the other of
    the two respondents. Future filings in this proceeding must reflect the amended caption of this
    order.
     
    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 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). Here, respondent 4832 S. Vincennes, L.P. timely
    filed an answer to the original complaint on September 8, 2003. Because the first-amended
    complaint is substantively unchanged except for the substitution of respondents, the Board will
    treat the answer 4832 S Vincennes, L.P. has already filed as its answer to the first-amended
    complaint.
     
    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.
       
     
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    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 November 6, 2003, by a vote of 6-0.
     
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board
     

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