ILLINOIS POLLUTION CONTROL BOARD
December 20, 2001
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
ENVIRONMENTAL MANAGEMENT AND
ABATEMENT, INC., a California corporation,
and DANNY G. KOHRDT, individually and as
president of Environmental Management and
Abatement, Inc.
Respondent.
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PCB 02-5
(Enforcement – Land)
ORDER OF THE BOARD (by N.J. Melas):
On July 19, 2001, the People of the State of Illinois (complainant) filed a two-count
complaint against Environmental Management and Abatement, Inc., and Danny G. Kohrdt,
individually and as president of Environmental Management and Abatement, Inc. (respondents).
Complainant alleged that respondents violated Section 21(a) and Section 21(d)(2) of the
Environmental Protection Act (Act) (415 ILCS 5/21(a) and 5/21(d)(2) (2000)) and several
subsections of Part 815 of the Board’s regulations (35 Ill. Adm. Code 815) by causing or
allowing open dumping and failing to file required reports and information related to the on site
disposal of waste at the Joliet Army Ammunition Plant.
MOTION TO STRIKE
This matter is before the Board today on respondents’ November 20, 2001 motion to
strike portion 5 of complainants’
ad damnum
clause (motion to strike). Respondent specifically
requests that the Board strike paragraph 5 of the
ad damnum
clause in each count of the
complaint. The
ad damnum
clause provides, in pertinent part:
WHEREFORE, complainant, PEOPLE OF THE STATE OF ILLINOIS,
respectfully requests that the Board enter an order in favor of Complainant and
against Respondents, ENVIRONMNETAL MANAGEMENT & ABATEMENT,
INC and DANNY G. KOHRDT:
* * *
5. Ordering the Respondents to pay all costs, including attorney, expert
witness and consultant fees expended by the State in pursuit of this action;
Respondents cite Section 42(f) of the Act which provides that costs and fees are only
available when a respondent has “committed a willful, knowing or repeated violation of the Act.”
415 ILCS 5/42(f) (2000). Respondents state that the complaint fails to allege that the
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respondents have committed any willful, knowing, or repeated violations of the Act.
Respondents state that, as a result, complainant cannot prevail on its request for costs and fees.
RESPONSE
On December 4, 2001, complainants filed a response to respondents’ motion to strike.
Complainant states that it sufficiently pled facts in its complaint supporting the allegations that
respondents committed willful, knowing or repeated violations of the Act and Board regulations.
For example, complainants alleged that respondents abandoned remediation work, meaning that
respondents at least had knowledge that they violated the Act and the Board’s regulations.
Furthermore, complainants stated that Agency inspectors observed violations during a November
23, 1998 inspection which were not corrected until at least June 13, 2000.
Complainant states that, even if it had not pled such facts, it would not be precluded from
recovering fees and costs. Complainant claims that respondents have cited no authority that
allegations of willful, knowing or repeated violations are a pleading requirement. Complainant
states that the Board makes determinations on whether to assess penalties based on evidence
presented at hearing.
Complainant requests that the Board deny respondents’ motion to strike.
DISCUSSION AND CONCLUSION
The Board finds that complainants have alleged facts, which, if proven at hearing, could
result in the Board determining that respondents committed willful, knowing, or repeated
violations of the Act or the Board’s regulations. As a result, the Board denies respondents’
motion to strike. The Board directs that this matter proceed to hearing as expeditiously as
practicable.
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 20, 2001, by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
