ILLINOIS POLLUTION CONTROL BOARD

December 16, 2004

PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

J. McDANIEL, INC. an Illinois corporation,

Respondent.

)

PCB 05-110

(Enforcement - Water)

ORDER OF THE BOARD (by J.P. Novak):

On December 14, 2004, the Office of the Attorney General, on behalf of the People of the

State of Illinois (People), filed a complaint against J. McDaniel, Inc. (J. McDaniel).

See

415

ILCS 5/31(c)(1) (2002); 35 Ill. Adm. Code 103.204. The complaint concerns two separate

incidents that occurred in 2001: (1) the spillage of 2,900 gallons of gasoline from a tank truck

operated by J. McDaniel’s at a service station at the corner of Voorhees and Bowman in

Danville, Vermilion County; and (2) the spillage of 8,000 gallons of gasoline from a truck

operated by J. McDaniel on Route 136 in McLean County that crossed into oncoming traffic,

struck a car, rolled over, struck a utility pole, and spilled the gasoline. For the reasons below, the

Board accepts the complaint for hearing.

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 J. McDaniel violated Section 12(a) and (d)

of the Act (415 ILCS 5/12(a) and (d) (2002)) by (1) causing water pollution by causing or

allowing the discharge of gasoline and dissolved petroleum constituents into a storm sewer,

surface water drainage way, and Stony Creek; (2) creating a water pollution hazard by causing or

allowing gasoline and dissolved petroleum constituents to be released from the tanker truck and

deposited on land within the drainage way and failing to remove the contaminated soils or

sediments; (3) causing water pollution by causing or allowing the discharge of gasoline and

dissolved petroleum constituents into a surface water drainage way and Sugar Creek; (4) creating

a water pollution hazard by causing or allowing gasoline and dissolved petroleum constituents to

be released from the tanker truck and deposited on land within the drainage way along either side

of Route 136 in the area between the release point and a nearby residential well. The People ask

the Board to order J. McDaniel to cease and desist from further 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 J. McDaniel 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 J. McDaniel 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.”

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.

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 16, 2004, by a vote of 5-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board