ILLINOIS POLLUTION CONTROL BOARD
December 2, 2004
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
VILLAGE OF NORTH CITY, an Illinois
municipal corporation; LAWRENCE A LIPE
& ASSOCIATES, INC., an Illinois
corporation; ALTMAN-CHARTER
COMPANY, a Missouri corporation; and
FURLONG EXCAVATING, INC., an Illinois
corporation,
Respondents.
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PCB 05-96
(Enforcement - Water, Public Water
Supply)
ORDER OF THE BOARD (by J.P. Novak):
On November 17, 2004, the Office of the Attorney General, on behalf of the People of
the State of Illinois (People), filed a complaint against Village of North City; Lawrence A Lipe
& Associates, Inc.; Altman-Charter Company; Furlong Excavating, Inc. (collectively, except as
to Lawrence A. Lipe & Associates, Inc., the respondents).
See
415 ILCS 5/31(c)(1) (2002); 35
Ill. Adm. Code 103.204. The complaint concerns the respondents’ construction or installation of
a sewage lift station and water main in the Village of North City, Franklin County.
For the reasons below, the Board accepts the complaint for hearing as to all respondents.
On November 22, 2004, the Board received a stipulation and proposal for settlement in this
matter as to the single respondent, Lawrence A Lipe & Associates, Inc. (individually, Lawrence
A. Lipe). The Board orders publication of the necessary notice relating to the stipulation and
proposal for settlement agreement as to Lawrence A. Lipe.
SET FOR HEARING ORDER AS TO ALL RESPONDENTS
Under the Environmental Protection Act (Act) (415 ILCS 5/1
et seq
. (2002)), the
Attorney General and the State’s Attorneys may bring actions before the Board to enforce
Illinois’ environmental requirements on behalf of the People.
See
415 ILCS 5/31 (2002); 35 Ill.
Adm. Code 103. In this case, the People allege that the respondents violated Section 12(c) and
15(a) of the Act (415 ILCS 5/12(c) and 15(a) (2002)) and 35 Ill. Adm. Code 309.202(a),
602.101(b), and 653.119(b)(1)(A) by (1) construction or installation of a sewage lift station in
the village of North City without a permit; (2) failing to submit complete plans and specifications
for a 1999 water main permit; and (3) construction or installation of a water main without
complying without maintaining at least 10 feet horizontal separation between sewer and water
lines. The People ask the Board to order the respondents to cease and desist from further
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violation and pay a civil penalty of $50,000 per violation and $10,000 for each day the violations
continued.
The Board finds that the complaint meets the content requirements of the Board’s
procedural rules and accepts the complaint for hearing.
See
35 Ill. Adm. Code 103.204(c), (f),
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 the respondents fail 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 respondents to have
admitted the allegation. 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 ongoing 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.
With Public Act 93-575, effective January 1, 2004, the General Assembly changed the
Act’s civil penalty provisions, amending Section 42(h) and adding a new subsection (i) to
Section 42. Section 42(h)(3) now states that any economic benefit to respondent from delayed
compliance is to be determined by the “lowest cost alternative for achieving compliance.” The
amended Section 42(h) also requires the Board to ensure that the penalty is “at least as great as
the economic benefits, if any, accrued by the respondent as a result of the violation, unless the
Board finds that imposition of such penalty would result in an arbitrary of unreasonable financial
hardship.”
Under these amendments, the Board may also order a penalty lower than a respondent’s
economic benefit from delayed compliance if the respondent agrees to perform a “supplemental
environmental project”
(SEP). A SEP is defined in Section 42(h)(7) as an “environmentally
beneficial project” that a respondent “agrees to undertake in settlement of an enforcement action
. . . but which the respondent is not otherwise legally required to perform.” SEPs are also added
as a new Section 42(h) factor (Section 42(h)(7)), as is whether a respondent has “voluntary self-
disclosed . . . the non-compliance to the [Illinois Environmental Protection] Agency” (Section
42(h)(6)). A new Section 42(i) lists nine criteria for establishing voluntary self-disclosure of
non-compliance. A respondent establishing these criteria is entitled to a “reduction in the portion
of the penalty that is not based on the economic benefit of non-compliance.”
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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 total dollar amount and the
portion of that amount attributable to the respondent’s economic benefit, if any, from delayed
compliance), and supporting its position with facts and arguments that address any or all of the
Section 42(h) factors. The Board also directs the hearing officer to advise the parties to address
these issues in any stipulation and proposed settlement that may be filed with the Board.
PUBLICATION ORDER FOR THE STIPULATION AND PROPOSAL
FOR SETTLEMENT AS TO LAWRENCE A. LIPE
On November 22, 2004, the People and Lawrence A Lipe also filed a stipulation and
proposed settlement, accompanied by a request for relief from the hearing requirement of Section
31(c)(1) of the Act (415 ILCS 5/31(c)(1) (2002)). This filing is authorized by Section 31(c)(2)
of the Act (415 ILCS 5/31(c)(2) (2002)).
See
35 Ill. Adm. Code 103.300(a). Under the proposed
stipulation, Lawrence A. Lipe admits the alleged violations and agrees to pay a civil penalty of
$5,000.
Unless the Board determines that a hearing is needed, the Board must cause notice of the
stipulation, proposed settlement, and request for relief from the hearing requirement. Any person
may file a written demand for hearing within 21 days after receiving the notice. If anyone timely
files a written demand for hearing, the Board will deny the parties’ request for relief and hold a
hearing. 415 ILCS 5/31(c)(2) (2000); 35 Ill. Adm. Code 103.300(b), (c). The Board directs the
Clerk of the Board to provide the required notice as to Lawrence A. Lipe.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on December 2, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
