ILLINOIS
POLLUTION
CONTROL
BOARD
December 20, 1995
PEOPLE OF THE STATE
)
OF ILLINOIS,
Complainant,
v.
)
PCB 95-47
)
(Enforcement
-
Land)
WO.W. TRUCK LINES,
INC.,
)
Respondent.
INTERIM OPINION AND ORDER OF THE
BOARD
(by H. NcFawn):
This matter is before the Board on a November 3,
1995 motion
for summary judgment, with supporting affidavit,
filed by
complainant People of the State of Illinois (People) against
W.0.W. Truck Lines,
Inc.
(W.O.W.).
The People seek summary
judgment on a complaint filed against W.O.W.
on February 7,
1995.
W.0.W. has not filed a response to the motion for summary
I
udcjment.
ALLEGED VIOLATIONS
The complaint in this matter alleges that W.O.W. violated
Section 21(g)
of the Environmental Protection Act (Act)
and 35
Ill.
Adm. Code 809.201 by accepting and transporting hazardous
waste without a permit.
Section 21(g)
of the Act provides in
relevant part:
No person shall:
g.
conduct any hazardous waste transportation
operation:
1.
Without a permit issued by the Agency or in
violation of any conditions imposed by such
permit.
2.
In violation of any regulations or standards
adopted by the Board under this Act.
(Section 21(g)
of the
Act.)
35 Ill.
Adm. Code 809.201 provides in relevant part:
No person shall haul or otherwise transport any special
waste generated within Illinois
.
.
.
without a
current, valid waste hauling permit issued by the
Agency in accordance with the requirements of this
Subpart.
2
(35 Iii. Adm. Code 809.201.)
MOTION FOR SUMMARY JUDGMENT
In support of the motion for summary judgment, the People
assert that W.o.W. has tailed to respond to
tile complaint, which
was filed with the Board on February 7, 1995.
Furthermore, the
People assert that,
on October
2,
1995, the People filed a
request to admit facts in accordance with the requirements of 35
Ill.
Adm. Code 103.162(a).
W.O.W. has also failed to respond to
this discovery motion.
The People assert that, pursuant to 35
Ill.
Adm. Code 103.162 (c), the facts in the request are deemed
admitted due to W.0.W.
‘S
failure to respond to the request to
admit.
The People assert that the following facts are deemed
admitted due to W. 0. W. ‘s failure to respond to the request to
admit:
W.0.W.
is an Oklahoma corporation not registered to do
business in the State of Illinois.
The Illinois Environmental
Protection Agency (Agency)
issued W.O.W. Special Waste Hauling
Permit No.
2302 on September 11,
1990.
That permit expired on
September 30,
1991,
and W.O.W. did not apply to renew the permit.
Subsequently, W.O.W. transported D018 hazardous wastes, a special
w~tste,
Croin
the Village of Sauget wastewater Treatment Plant to a
U.S.
Pollution Control Company facility in Waynoka, Oklahoma on
five occasions as follows:
1)
on September 24,
1992,
24 cubic
y~rd~
2)
on March 31,
1993,
two shipments,
each cori~istingof
20-26 cubic yards;
3)
on April
6,
1993, twenty-seven cubic yards;
4) on April 19,
1993, two shipments,
each consisting of 24 cubic
yards;
5)
on April
21,
1993,
two shipments,
each consisting of
24
cubic yards;
6) on April
23,
1993, two shipments,
each consisting
of 24 cubic yards.
Based
on
the admission at these allegations due to W.O.W.’s
failure to respond to the request to admit, and as attested to in
the affidavit supporting the motion to for summary judgment, the
People assert that they are entitled to summary judgment.
Summary judgment is appropriate where there are no genuine
issues of material fact to be considered by the trier of fact and
the movant is entitled to judgment as a matter of law.
(Waste
Manacrenient of Illinois,
Inc.
V.
IEPA (July 21,
1994)
PCB 94-153;
ESG Watts
v.
IEPA (August 13,
1992), PCB 92-54; Sherex Chemical
v. IEPA
(July 30,
1992), PCB 91-202; Williams Adhesives1
Inc.
v.
IEPA (August 22, 1991), PCB 91—112.)
35 Iii. Adm.
Code 103.162(c)
provides
in relevant part:
Admission in the Absence of Denial.
Each of the
matters of fact
.
.
.
is admitted unless, within 20
3
days after service thereof, the party to whom the
request is directed serves upon the party requesting
the admission either a sworn statement denying
specifically the matters of which admission is
requested or setting forth in detail the reason why he
cannot truthfully admit or deny those matters or
written objections on the ground that some or all of
the requested admissions are privileged or irrelevant
or that the request
is otherwise improper in whole or
in part.
w.o.W
has not filed a response or objection to the People’s
October
2,
1995 request to admit, or filed any other responsive
pleading in this matter.
We therefore find that the facts set
forth in the request to admit are deemed admitted.
Furthermore,
we find that,
based upon these admissions, no genuine issue of
material fact remains in this matter, and that summary judgment
is therefore appropriate.
We find that the uncontested facts are sufficient to
demonstrate
that
W.0.W has violated Section 21(g) Act and 35 Ill.
Adm. Code 009.201 by accepting and transporting hazardous waste
without a permit.
These facts demonstrate that W.O.W. has
violated these provisions by transporting ten shipments of
hazardous waste on six different dates without a valid permit
from
the
Agency.
REMEDY
Having found that W.o.W. violated the Act and Board
regulations, we must determine what constitutes a proper remedy.
This determination is governed by Section 33(b)
of the Act.
Under Section 33(b)
the Board has authority to issue final
orders, including orders directing a party to cease and desist
from violations, and orders imposing civil penalties in
accordance with section 42.
Under section 33 (c), when issuing
its orders and determinations, the Board is to consider:
all the facts and circumstances bearing upon
the reasonableness of the emissions,
discharges, or deposits involved, including
but not limited to the following:
1.
the character and degree of injury to, or
interference with the protection of the health,
general welfare and physical property of the
people;
2.
the social and
economic value of the pollution
source;
3.
the
suitability
or
unsuitability
of
the
pollution
source
to
the
are
in which
it
is
located
.
.
4.
the
technical
practicability
and
economic
reasonableness
of
reducing
or eliminating the
emissions, discharges or deposits resulting from
such pollution source; and
5.
any subsequent compliance.
(415 ILCS 5/33(c).)
In the complaint, the People seek an order finding W.O.W.
in
violation of the Act and Board regulations, directing W.o.W.
to
cease and desist from further violations, assessing a civil
penalty of up to $50,000 per violation and $10,000 for each day
the violations continued pursuant to Section 42 of the Act, and,
pursuant to Section 42(f)
of the Act, an award of attorneys fees
and costs.
Additionally,
in the motion for summary judgment the
People seek the imposition of a civil penalty of
$10,000, and,
pursuant to Section 42(f)
of the Act, an award of attorneys fees
and costs.
Under the circumstances of this case, where W.0.W. has not
responded to any of the allegations made against it, we find that
an order imposing a penalty, and directing W.O.W. to cease and
desist from further violations of the Act,
is an appropriate
remedy.
PENALTY
Section 42 of the Act gives the Board authority to impose
civil penalties upon those found in violation of the Act or Board
regulations,
or permits or Board orders issued pursuant thereto.
Section 42(a)
of the Act provides:
Except as provided in this Section, any person that
violates any provision of this Act or any regulation
adopted by
the Board, or any permit or term or
condition thereof,
.
.
.
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
for each day during which the violation
continues.
.
.
Additionally, Section 42(b) (3) provides:
Any person that violates Section 21(f),
(21(g),
21(h)
or 21(i)
of this Act,
or any RCRA permit or term or
condition thereof,
or any filing requirement,
regulation or order relating to the State RCRA program,
3
shall
be
liable
to
a
civil
penalty
of
not
to
exceed
$25,000
per
day
of
violation.
In
determining
the
appropriate
penalty
to
be
imposed
for
a
violation,
Section
42(h)
of
the
Act
authorizes
the
Board
to
consider
factors
in
aggravation
or
mitigation
thereof,
including
but
not
limited
to:
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
the requirements of this Act and regulations
thereunder
.
.
3.
any
economic
benefits
accrued
by
the
violator
because
of
delay
in
compliance
with
requirements;
4.
the amount of monetary penalty which will
serve to
deter
further 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.
Section 42(f)
of the Act also authorizes the Board to award
costs and reasonable attorney’s fees to the State’s Attorney or
Attorney General in a case where he has prevailed against a
person who has committed a wilful, knowinq or repeated violation
of the Act.
Any funds collected under this provision in which
the Attorney General has prevailed must be deposited in the
Hazardous Waste Fund created pursuant to Section 22.2 of the Act.
The uncontested facts demonstrate that W.0.W. made a total
of ten shipments of hazardous waste on seven different dates in
violation of Section
21(g)
of the Act and 35 Ill. Adm. Code
809.201.
In their motion for summary judgment, the People
request a penalty of $10,000.
W.O.W. has not responded to the
People’s assertions concerning the appropriate determination of a
penalty amount.
We note that W.O.W. failed to respond at all in
this action to explain its actions or present any defense.
Under these circumstances, where the People have
demonstrated that W.O.W. has committed repeated violations of the
Act, and where W.0.W. has failed to respond to the allegations
against
it,
the Board
finds that the
$10,000 penalty
requested
by
the People is warranted.
Additionally, we find that, pursuant to
Section 42(f)
of the Act, these repeated violations warrant the
award of costs and reasonable attorney’s fees to the People.
b
Based
upon
the
preceding
findings
of
fact
and
conclusions
of
law,
the
attached
order
finds
W.O.W.
in
violation
of
Section
21(g)
of
the
Act
and
35
Ill.
Adm.
Code
809.201,
and
grants
summary judgment for the People.
It further directs the People
to
submit
an
affidavit
attesting
to
the
fees
and
costs
expended
on
this
action,
and
provides
W.O.W.
an
opportunity
to
respond
thereto.
Upon
receipt
of
the
requested
information
and
response,
or expiration of the time allowed therefor, the Board will issue
an order aesoceing the ten thoucand dollar ($10,000) penalty,
making the appropriate award of costs, and ordering W.O.W.
to
cease and desist from further violations
of the Act.
This interim opinion constitutes the Board’s findings of
fact and conclusions of law in this matter.
ORDER
1)
The Board hereby grants summary judgment in favor of the
People of the State of Illinois
(People)
ond against
respondent WO.W. Truck Lines,
Inc.
(W.OW.).
2)
The People are hereby directed to file a statement of
hearing costs and attorneys fees,
supported by affidavit,
with the Board and with service upon respondent, on or
before January 4,
1996.
3)
W.O.WS
is hereby given leave to file a response to the
filings ordered in paragraph 2 on or before January
18,
1996.
I, Dorothy H. Gunn,
Clerk of the Illinois Pollution Control
Board, hereby certify~that the above ~,nterimopinion and order
was adopted on the ~2j0z~
day of
~-C~t&.~-~
,
1995, by a
vote of
7-~
~
Dorothy H. 4unn,
Clerk
Illinois ~~1lution Control Board
